Pope v. Jackson

• Decision Date: 05 August 1876
• Citation: 65 Me. 162
• Parties: FREDERIC C. POPE et als. v. ISAAC JACKSON.
• Court: Maine Supreme Court

65 Me. 162

FREDERIC C. POPE et als. v. ISAAC JACKSON.

Supreme Judicial Court of Maine.

August 5, 1876

1875.

ON REPORT from the superior court.

REPLEVIN for two embossing presses.

The defendant pleaded non cepit and further for brief statement: " that at the time when the taking of the said goods and chattels is supposed to be, the property of the same was in the said defendant, to wit, at said Windham without this, that the property of the same goods and chattels, was in the said plaintiffs, as they by the writ and declaration above suppose; and this he is ready to verify Wherefore he prays judgment and a return of the same goods and chattels to be adjudged to him, and for his costs."

To which the plaintiffs filed replication as follows: " And for counter brief statement and replication in the above entitled cause, the said plaintiffs say that they ought not to be precluded from having and maintaining their said action, because they say that at the time of the taking of the said goods and chattels described in their said writ, the property of the said goods and chattels, was not in the defendant, as he has alleged in his brief statement and plea and this they pray may be inquired of by the country."

After the evidence was out, the case was made law on report.

J. Howard, N. Cleaves and H. B. Cleaves, for the plaintiffs.

A. A. Strout and G. F. Holmes, for the defendant.

VIRGIN J.

Pleadings. The defendant's objection to the maintainance of this action by all of the plaintiffs as surviving partners of F. C. Pope & Co., for the alleged reason that only one of them has given the bond required by R. S., c. 69, §§ 1 and 2, cannot be sustained. It was not seasonably taken. It should have been pleaded in abatement. The plea of non cepit admitted the capacity of all the plaintiffs. Strang v. Hirst, 61 Me. 9. Brown v. Nourse, 55 Me. 230.

Neither is the plaintiffs' point as to the burden of proof tenable. The plea of non cepit alone does not deny the plaintiffs' title in the chattels replevied, but rather admits the fact. Neither does a brief statement alleging property in the defendant, except by implication; and in such case, the burden is on the defendant to sustain his affirmative allegation. But when the brief statement alleges the property to be in the defendant and not in the plaintiff, the title of the latter is thereby directly put in issue with the burden resting upon him. Dillingham v. Smith, 30 Me. 370. Moulton v. Bird, 31 Me. 296. Cooper v. Bakeman, 32 Me. 192.

The brief statement here is not drawn in the modern, concise form, but the denial of the plaintiffs' title is expressed by what Mr. Stephens denominates " that peculiar and barbarous formula, (absque hoc ) ‘ without this, that,’ " & c.; which constitutes in pleading a technical form of negation, and is equivalent to et non, and is sometimes called a formal traverse, or a traverse with an absque hoc. Steph. Plead., (ed. 1871,) 181, et seq. Gould Plead., c. 7, §§ 6, 7 and 8. Lawes Plead., 116, et seq. This form of plea was adopted in Presgrave v. Saunders, 1 Salk. 5, and in Quincy v. Hall, 1 Pick. 357. When the defendant thus pleads property and traverses property in the plaintiff, the counter brief statement should take issue on the title of the plaintiff; since a traverse of property in the defendant is not material. Com. Dig. Pleader, 3 K. 12.

Facts. Some of the material facts are only vaguely developed by the evidence reported; but we think the following sufficiently appear.

Prior to December, 1870, the firm of Isaiah Pope & Co., owned certain real estate on Pleasant river, in Windham, comprising a grist-mill, woolen-factory, and another building situated on the opposite side of the highway, designated by the witnesses as the " long building," or " long shed." The mills and factories were operated by the firm, and the " long building" used for storing wool, drying cloth, etc. At the date mentioned, a new firm consisting of I. P. & Co. with F. C. Pope added was formed and commenced the business of manufacturing felt. They were to occupy any part of the buildings of I. P. & Co., necessary to their business, I. P. & Co. having put some machinery into their factory adapted to that business, including a steam boiler, etc.

In 1871, but prior to Nov. 13th, Charles Staples & Co. manufactured the two embossing presses in controversy for F. C. Pope & Co., which were placed in the " long building," and subsequently paid for. The presses weighed about five thousand pounds each, and stood upon the floor without any other attachment to the reality except by a steam pipe three-quarters of an inch in diameter, one end of which was fixed to the boiler in the factory, thence extending in a wooden box under the bed of the highway, with the other end connected with the presses by a coupling with a right and left screw. The steam through this pipe was used simply for heating purposes.

On Nov. 13th, 1871, the several members of I. P. & Co., by their mortgage deed, conveyed the premises to the defendant. In addition to a description of the land on which the buildings stood, the mortgage included in terms, " the buildings, mills and factories, together with the machinery, belts, tools and fixtures of every name and nature contained therein."

The presses were not the property of I. P. & Co., when the mortgage was executed, but belonged to Staples & Co., who sold them to F. C. P. & Co. in February following.

Isaiah Pope died the following April, whereby the firm of F. C. Pope & Co. became dissolved, being then insolvent. They no longer occupied the premises which were soon afterwards surrendered to the defendant, he receiving possession under his mortgage.

At best F. C. Pope & Co. were tenants...