The answer of the defendants contains, among other things inartificially set forth, a denial of the plaintiff’s title or right of possession to the property replevied. Under this denial they offered evidence that one of the defendants had the property in his possession by virtue of a pledge made prior to the plaintiff’s mortgage. This evidence was objected to, on the ground that its object was to prove “ a substantive fact in-' tended to be relied upon in avoidance of the action,” and therefore it was not admissible unless the fact was “ set forth in clear and precise terms ” in the answer, according to the eighteenth section of the practice act, St. 1852, c. 312. But we cannot thus regard its object. It does not avoid the plaintiff’s allegation, but meets it, and, if believed by the jury, overthrows it. The plaintiff has taken the burden of proving title in himself; and this evidence is pertinent to that point, for it tends to show that the title was not in him.
This question has been substantially decided in the case of Knapp v. Slocomb, 9 Gray, 73. That was an action of tort for a trespass upon real estate; under an answer averring the defendant’s ignorance of the truth of the plaintiff’s allegations, he offered evidence that the title to a portion of the close described in the plaintiff’s declaration was in a third person and not in the plaintiff, for the purpose of disproving the plaintiff’s title and possession; and the evidence was held to be admissible. The statute makes no difference in this respect between actions of tort for trespass and actions of replevin. And though it requires that each substantive fact intended to be relied on in avoidance of the action shall be set forth, yet it also provides that no party shall be required to state evidence, or disclose the means by which he intends to prove his case.
Exceptions overruled.