Howe v. Shaw , 56 Me. 291 ( 1868 )

Barrows, J.,

expressed his views in the following opinion : —I concur in overruling the exceptions. The defendant claimed that the cattle belonged to the firm of Shaw, Tracy & Co., of which firm he was a member, and, by his pleadings filed in this case, he justified the taking, claimed judgment for his damages and costs, and for a return of the property to his firm. His justification of the act failing, it seems unreasonable that he should now be permitted to avoid the payment of damages and costs by denying the act which, by his pleadings, he had previously admitted and justified.

If these exceptions were sustained, could he again con - test the plaintiff’s title, or only the taking? The question of title seems to have been settled against him under instructions of which he makes no complaint.

In his testimony, as well as by his pleadings, the defendant admits that he, in company with one of his partners, (Tracy,) went out and took these cattle from the possession of the plaintiff, in Somerset county, with the intention of bringing them to Newport, in this county; that they drove them together to Wyman’s (near the Newport line, but in Somerset county,) and then this defendant got out and Tracy drove them in, and this defendant had personally nothing more to do with them, his partner, (Tracy,) who went with him, putting them in his barn. But the defendant does not even pretend that the driving them in by Tracy, and the detention of them in Tracy’s barn, in this county, wei’e not in pursuance of his own original intention in going with Tracy to get them, or that he, at any time, changed that intention or ceased to assert the title of Shaw, Tracy & Co. to the cattle, and their right to the possession of them in Penobscot county, as against the plaintiff. Under these circumstances, with such admissions from the defendant, both in pleading and evidence, in the case, I do not see how he could be harmed by the refusal of the presiding Judge to state an abstract rule of law, which, if correct, had no pertinency to the case presented by these pleadings and this evidence. When a defendant in replevin justifies the taking and claims a return of the property, I do not think he should be permitted in the same breath to deny the taking as alleged, or to assert that that was not in his possession which he claims should be returned to it.

It seems to me that such pleadings by the defendant relieve the plaintiff from the necessity of-proving the taking, and that, thenceforward, the true and only issue is one of title and right of possession. For these reasons I think the exceptions should be overruled.