Harrison against M'Intosh, 1 Johns. 380

Kent, Ch. J. delivered the opinion of the court. The avowry in this case was clearly bad. It was necessary for the avowant to have set forth his title, and to allege the estate of which he was seized. The power of distress is called an extraordinary power, and for this reason the common law requirecHhe authority to be specifically shown.

This old rule is still to be strictly inforced in cases not within the remedial revisions of certain statutes relative to pleadings in replevin. (Yelv. 148. 2 Wils. 261. 2 Bos.& Pul. 359. 2 Saund. 283. 284 c. n. 3. 310. 314. n. 13.) With respect to this point we have no relaxation of the common law rule, as the provision in the statute of 11 G. 2. c. 19. sec. 22. has never been adopted.

But the plea of property ip a stranger is a good plea either in abatement or in bar, and entitles the party to a return without avowry, for the possession was illegally taken from him by the replevin. (2 Lev. 92. 1 Salk. 94.) The reply to this plea was insufficient and bad. The first reply was, that the defendant entered the house in the night time and took the goods. This fact was altogether immaterial and irrelevant to the question of property which the plea ought to have confessed and avoided, or traversed and denied. The second replication to this plea is also insufficient.

It states that the goods were delivered to him by one Brown^ to keep safely, but does not allege any property in Brown, nor any authority in him to deposit them. A deposit by a person having no" property in the goods, and who might have come to the possession of them tortiously, could give the plaintiff no right to replevy them.

And if the deposit had been made by the rightful owner, it is very questionable whether the plaintiff could have maintained a replevin for the taking, as the deposit was, from his own showing, q mere naked bailment for safe-keeping, in which case, the plaintiff could only be answerable for gross negligence in regard to his trust. Having no interest in the goods deposited, and not being responsible to the bailee for the taking, there can-be no reason why he should have an action of trespass or replevin.

But it is sufficient to observe in this case, that for the reason first mentioned, the demurrer to this replication was well taken, and the judgment below properly rendered. If either plea be good, judgment must be given against the defendant, as it appears that he had no cause of action. The judgment below must therefore be affirmed. Judgment affirmed.