Dermott v. Wallach

• Decision Date: 01 December 1861
• Citation: 17 L.Ed. 50,1 Black 96,66 U.S. 96
• Parties: DERMOTT v. WALLACH
• Court: U.S. Supreme Court

66 U.S. 96

1 Black 96

17 L.Ed. 50

DERMOTT v. WALLACH.

December Term, 1861

Charles S. Wallach brought replevin in the Circuit Court for the District of Columbia against Ann R. Dermott. In his declaration the plaintiff averred that certain articles of household furniture were taken by the defendant and detained against surties and pledges. The defendant pleaded that 'the goods and chattels in the declaration mentioned are not the property of the said plaintiff, and of this she puts herself on the country.' The defendant also avowed the taking of the goods for rent in arrear, setting out the lease, and the amount due thereon. To the avowry the plaintiff replied riens en arriere, but did not formally join issue on the plea of property by putting in a similiter. The defendant prayed the court to instruct the jury on several points, all of them having relation to the one question whether the rent had become due and payable to the plaintiff, as alleged by her. The court refused to give the instructions prayed for, and the jury found that the rent claimed by the defendant 'at the time when, &c was not in arrear and unpaid, nor was any penny thereof,' assessing the damages of the plaintiff for the taking and detention at one cent. The court gave judgment for the plaintiff, that he have return of the goods, with the damages assessed by the jury and costs.

Mr. Brent, of Maryland, for plaintiff in error.

Mr. Carlisle and Mr. Coxe, of Washington city, for defendant in error.

Mr. Justice NELSON.

This action was replevin, brought by the plaintiff below, Wallach, against the defendant, for taking certain goods and chattels of the plaintiff from a house called the Avenue House, situated in the city of Washington.

The defendant pleaded: 1. That the goods and chattels in the declaration mentioned were not the property of the plaintiff. 2. Avowed the taking, by way of distress, for rent due and in arrear, under special circumstances stated, concluding with a verification. 3. Like avowal for rent due and in arrear generally.

The plaintiff replied to the first avowry, no rent in arrear and unpaid. No notice is taken in the pleadings of the second avowry.

The jury found a special verdict, that no rent was due or in arrear upon the issue joined on the first avowry, and assessed the damages; and judgment was given that the plaintiff recover the goods and chattels, and have a return of the same, &c. No notice is taken in the verdict or judgment of the plea of...