Per  Henry  J — No  effort  having  been  made  in  the  court  below  to  add
such  a  plea  it  was  too  late  and  contrary  to  precedent  and  justice  now  to
admit  it.
Per  Gwynne  J.— When  the  plaintiff  fails  to  show  in  evidence  that  he
was  in  actual  possession  at  the  time  of  the  taking,  and  is  therefore  driven  to


79

Contract — Continued.
rest  on  the  goodness  of  his  title  to  the  property,  a  defendant  may  ,in  rebuttal
of  the  evidence  of  such  title,  set  up  a  haie  jus  tertii  without  showing  he  had
any  authority  from  the  third  person  having  such  title.  So  a  sheriff  sued  for
taking  the  goods  of  the  plaintiff  may  show,  under  this  issue,  that  the  goods
belonged  to  a  third  party  against  whom  he  took  them  in  execution.  The
several  matters  therefore  alleged  in  the  3rd,  4th  and  5th  pleas  were  matters
which  could  have  been  given  in  evidence  under  the  issue  joined  upon  the
2nd  plea.  As  to  the  5th  plea,  in  view  of  the  evidence  it  was  quite  inappro-
priate to  such  evidence,  for  the  writ  of  replevin  placed  in  the  hands  of  the
defendant  as  sheriff  to  be  executed  did  not  vest  in  the  defendant  any  pro-
perty in  the  goods,  the  taking  of  which  was  complained  of,  so  as  to  euable
him  to  justify  the  taking  as  his  own  property  as  is  done  in  the  5th  plea.     •

Appeal  dismissed  with  costs.
Swim  T.  Sheriff-lOth  June,  1881.
15.  Partnership  between  Contractors — Nature  of  contract.
See  PARTNERSHIP  3.
16.  For  carriage  of  Steel  Rails — Eepresentation  by  Agent  of  Crown.
See  PETITION  OF  RIGHT  17.
