It is established law that the action of replevin can be maintained only by him who has property, general or special, in the cattle or goods which are the subject of the action, and a right to the immediate possession of them. Co. Litt. 145 b. 14 Petersd. Ab. 253. Waterman v. Robinson, 5 Mass. 304 Wheeler v. Train, 3 Pick. 255. Hence it has always been a good plea in bar of the action, that the cattle or goods are not the property of the plaintiff. Com. Dig. Pleader, 3 K. 12. Story’s Pleadings, (2d ed.) 456. Page v. Weeks, 13 Mass. 199. Whitwell v. Wells, 24 Pick. 25. And since special pleas in bar are abolished in this commonwealth, and an answer is required to be filed in place thereof, such answer is good and sufficient if it duly sets forth a ground of defence which might formerly have been well pleaded in bar. Such an answer has been filed by this defendant; namely, that the horses mentioned in the plaintiff’s writ were not the property of the plaintiff. And the question is, whether the last instruction that was given to the jury, on the trial, was correct: that is, whether the facts on *229which, under that instruction, the jury must have found a verdict for the plaintiff, showed that he had “ such a title to the horses as would enable him to maintain this action against this defendant.” Our opinion is that this instruction is not sustainable. Those facts do not show that the plaintiff has any property, general or special, in the horses, but do show that he had not. Jonathan I. Caldwell’s assignee was the sole legal owner of them, under the conveyance to him of said Caldwell’s estate, real and personal, by the judge of insolvency, (Gen. Sts. c. 118, §§ 42, 44,) and through the assignee alone could the plaintiff acquire any property in them. But the assignee never sold nor transferred them to any one. Horace Caldwell, therefore, had no title to them, and could not convey any to the plaintiff. As they were fraudulently withheld from the assignee, and knowledge that they were the property of the insolvent debtor was fraudulently concealed from him, his omission to exercise or claim any ownership of them was not a parting with his right of property. He is still the legal owner of them. And it is unimportant whether the plaintiff took his bill of sale of them bona fide or otherwise. Story on Sales, (3d ed.) § 201.
A plaintiff in replevin, like plaintiffs in other actions, must maintain his case on the strength of his own title or claim. It is immaterial whether the defendant has or has not any title, if the plaintiff fails to show any in himself. When the plaintiff so fails, the possession of the replevied property as a general rule ought to be restored to the defendant, who, if he be not the true owner, will be answerable for it to such owner. Hubloun's case, Skin. 65. Parker v. Mellor, 1 Ld. Raym. 217. Presgrave v. Saunders, 2 Ld. Raym. 984, and 1 Salk. 5. Quincy v. Hall, 1 Pick. 357, 360. Whitwell v. Wells, 24 Pick. 32. Dawson v. Wetherbee, 2 Allen, 461. Simcoke v. Frederick, 1 Carter, (Ind.) 54. Marienthal v. Shafer, 6 Iowa, 223.
Exceptions sustained.