Gilchrist v. Moore

"Woodwakd, J. It is true tliat the defendant did not make objection to the amendment of the petition, by which a new plaintiff was introduced into the action, but pleaded to issue, and went to trial. Yet we do not think the plaintiffs can recover. The action is replevin, and the affidavit is in the name of Barclay Brothers, claiming the right of possession in them, and the writ issued in their names, and delivered the property to them. Afterwards, by amendment, Gilchrist is made plaintiff, and yet some of thepleaddings refer to the Barclays as plaintiffs. In truth, the action is brought into great confusion, arid this is so great, that it seems impossible to restore it to order. In the plaintiff’s argument he states, by way of apology, that the action was brought in the name of the Barclays, originally by consent and agreement. The question now, however, is whether he can be relieved from the embarrassment into which such consent, not adhered to, has brought him. And we think that the incongruity existing in the different parts of the action, by its original form and the subsequent pleadings, is such as to warrant the court in holding that the plaintiffs could not recover. There are legal difficulties which are not relieved by any consent implied in pleadings. But there is another ground upon which we come to the same conclusion. The instruction given was that, under the state of the case, as made by the papers, the plaintiffs cannot recover. The action is replevin, brought to recover the possession of goods alleged to be illegally withheld. The rule of law is, that where the possession is rightful in its inception, there must be a demand before bringing action. The possession of Moore was unquestionably rightful. But the plaintiff neither alleges nor proves a demand. Under this state of the pleadings, on his own part, ho is not entitled to recover. The instruction asked by the defendant and given by the court was correct, and the judgment is affirmed.