where the chattel was taken. Although it is not now assumed that the action is brought to determine whether or not the plaintiff has the right of possession of the locus in quo, it is nevertheless possible that it may have been commenced with that view; the form is, therefore, still preserved. But as it frequently happens that it is out of the plaintiff's power to ascertain in what place the chattel was first taken, the plaintiff may aver that it was seized in any place where it has been discovered in the possession of the defendant.43

3569. When several chattels have been taken at different places within the same county, the plaintiff may charge the defendant with the whole in one count. In such case, the better form seems to be to show what portion of goods was taken in one place and what in another, to enable the court to give the proper judgment in the event of the defendant avowing for a different cause in each place, and succeeding in his avowry, though it is said he may declare generally for taking twenty oxen in A and B.

3570. The declaration should also allege damages, for an omission in this respect will be fatal."

3571. The pleas in replevin are pleas in abatement, the general issue, and special pleas.

45

3572. A plea in abatement does not deny, and therefore, till something further is disclosed, admits the plaintiff's right to detain the chattels; consequently, a return to the defendant cannot be awarded under it. When the defendant has a right to a return, he ought, in addition to the plea in abatement, to avow." This is a double plea, and at common law it would have been objectionable were it not admissible from necessity, for without it complete justice could not be done; and as the plaintiff has occasioned the duplicity, he cannot complain. This is the only stage in the case when the defendant can take advantage of the non-joinder of a co-plaintiff in the suit.

48

3573. The general issue is formed by pleading non cepit. In its form it may answer the taking alone and not reply to the detention, because if the defendant did not seize the chattels, replevin is not the appropriate form of suit. This plea controverts all material averments in the declaration excepting that which affirms that the goods are the property of the plaintiff." But the defendant cannot have a return of the goods under this plea; 18 and therefore, if he wants a return, he must plead that he took the goods in some other place, describing it, and traverse the place laid in the declaration. This is done by the entry of cepit in alio loco. The defendant can only plead non cepit or cepit in alio loco in case he never had the cattle at all in the place mentioned in the declaration; for if the plaintiff prove that the defendant had the cattle mentioned in the declaration in that place, he will be entitled to a verdict notwithstanding the original taking was in another place.50 In order to have a return the defendant must avow or make cognizance, stating the cause for which he distrained.51

42 Potter v. North, 1 Saund. 347, n. (1).

43 Walton v. Kersop, 2 Wils. 354; Abercrombie v. Parkhurst, 2 Bos. & P. 481; Potter v. North, 1 Saund. 347, n. (1); Buller, Nisi P. 54. Faget v. Brayton, 2 Harr. & J. Md. 350.

45 Lawes, Pl. 78.

46 Hammond, Nisi P. 463.

"Trotter v. Taylor, 5 Blackf. Ind. 431; Wilson v. Royston, 2 Ark. 315; Vickery v. Sherburne, 20 Me. 34; Galusha v. Butterfield, 3 Ill. 227; McKinley v. McGregor, 3 Whart. Penn. 370; Hill v. Miller, 5 Serg. & R. Penn. 357; Williams v. Smith, 10 Serg. & R. Penn. 202.

48 Simpson v. McFarland, 18 Pick. Mass. 427; Whitwell v. Wells, 24 Pick. Mass. 25; Douglass v. Garrett, 5 Wisc. 85.

19 Williams v. Welsh, 5 Wend. N. Y. 290.

50 Walton v. Kersop, 2 Wils. N. Y. 354; Potter v. North, 1 Saund. 347, n. (1).

51 Potter v. North, 1 Saund. 347, n. (1).

When the declaration is for the unlawful detainer of goods, non cepit is not a good plea; the general issue in such case is non detinet.52

3574. Special pleas in replevin may be classified as follows: avowries and cognizances, pleas to the property, pleas in justification, and pleas in excuse and discharge.

3575. Avowries and cognizances are substantially the same; they differ from each other mainly in name and form. When the defendant justifies and claims a return of the goods and chattels or damages in his own right or that of his wife he begins his pleading by averring that he "well avows the taking of the goods," and then proceeds to state upon what ground and by what right he took them; as, for rent due, damage done by the plaintiff's cattle, and the like. But when he justifies as bailiff or servant of another, and in the right of the latter, he begins by saying that he "well acknowledges the taking," and then proceeds as in the former case. In the case first stated the defence is called an avowry; in the latter, a cognizance.53

Avowries and cognizances partake as much of the nature of a count or declaration as of a plea in bar; for at the same time that they entitle the defendant to a return of the cattle, goods, or chattels distrained, or the amount of them in damages, with costs, if the action of replevin be determined in his favor, they import a justification of the taking of the distress, either in the defendant's own right or in the right of another, and so protect or defend him from the claim or charge brought against him by the plaintiff.

It is for this reason that the defendant in replevin is said to be both actor and defendant. As defendant he may plead in abatement to the plaintiff's writ, and that were vain if he could not have a return of the things distrained; he is allowed, therefore, after his plea in abatement, to make avowry and cognizance pro retorno habendo, as it is called. As actor he claims a right to distrain, and therefore ought to make title to the distress against the plaintiff in replevin who claims property in it.

The criterion when the defendant should or should not make avowry or cognizance is this: when the defendant claims property in himself, he shall have a return on establishing his plea without making avowry or cognizance, because his plea destroys the title of the plaintiff. The title of the plaintiff is equally invalidated when he pleads property in a stranger, and therefore there shall be a return without avowry or cognizance, because, at the time of the distress the defendant had the possession which, if his plea be true, was illegally taken from him by the plaintiff in making the replevin when he had no right. On the contrary, in all pleas that do not show property to be out of the plaintiff, there must be an avowry or cognizance made.

The statute of 4 Anne, c. 16, s. 4, allows the defendant or tenant in any action or suit, or the plaintiff in replevin, with leave of court, to plead as many several matters thereto as he may think necessary. Therefore, not only may the defendant in replevin, as such, make several avowries or cognizances, but the plaintiff may also, by leave of court, plead as many pleas in bar thereto as he may think proper.

Many rules may be found in the elementary books respecting the forms of avowries and cognizances, but as they are governed in general by the same rules as in other cases, it will scarcely be necessary here to state them in detail." Considered as declarations, avowries are subject to the same general rules as

52 Walpole v. Smith, 4 Blackf. Ind. 304.

63 Potter v. North, 1 Saund, 347, c, n. (4); Comyn, Dig. Pleader, 3, K, 13, 14; Stephen, Pl. 218, note; Lawes, Pl. 83.

54 See Hammond, Nisi P. 465, seq.; Lawes, Pl. 77 to 87; Comyn, Dig. Pleader, 3, K, 13, 14; Bacon, Abr. Replevin, K; Dane, Abr. Index, Replevin.

declarations in personal actions; as special pleas in bar, they must possess the same properties which belong to such pleas.

3576. Pleas denying the plaintiff's property are obviously pleas in bar, and not in abatement, for they show that the plaintiff has no right to have the chattel restored to him, which is the primary object of the suit.55 If the defendant has pleaded property in a stranger, he will be entitled, upon proof, to have the goods returned to him. When it is pleaded that the property is in a stranger, the plea should not only allege that the goods and chattels mentioned in the declaration were not the property of the plaintiff, but should also state whose they were; and when the defendant pleads property in himself, he must still traverse the plaintiff's title.58

3577. As matters of defence, pleas in justification are similar to avowries, though they differ in form in this, that they disclose the accident which precludes the defendant from having the chattel returned to him; they commence with an actio non, and conclude with praying judgment of the plaintiff's suit. The following is an instance of a plea of justification: If two are defendants in replevin, the one having taken the chattels as servant of the other, though the principal plead non cepit, this will not preclude the servant from justifying in right of his master, and by that means exonerate himself from the charge of damages, for the master's plea is not conclusive that he neither did nor could authorize the taking; this, however, is a justification, and not an avowry, for the bailiff is, in any case, to have a return only in his master's right, and the latter has abandoned his claim by not insisting on it.

A defendant may also plead in justification when he was authorized by statute to take the chattel; thus, to an action of replevin for a horse, the defendant pleaded that he took him up as an estray, by virtue of the statute, at his residence, etc., and advertised him as required by law, and that the plaintiff brought the action before ten days had expired, etc. The plea was held good." 3578. Pleas in excuse and in discharge of the action of replevin are, both in form and substance, precisely similar to pleas of a like description in trespass. 3579. At common law, the replication to a plea in abatement could only take notice of the plea itself, and not of the avowry which is made in addition to it, because, if he replied to both, it might have been objected to on the ground of duplicity; and if he replied to the avowry only, he would have admitted the falsity of his writ. One of the objects of the statute of Anne, above mentioned, was to remove the only ground of exception to the practice of answering both the plea and the avowry.

The reply to the avowry is either a plea in abatement or in bar, according to its subject matter. The plea in abatement admits the claim to be well founded, and consequently that the avowant is entitled to a return, but contends that the right has not been insisted on in its appropriate form. The plaintiff's reply to the avowry is considered as a plea in bar, or a plea to the action of the avowry,

55 Rogers v. Arnold, 12 Wend. N. Y. 30: Martin v. Ray, 1 Blackf. Ind. 291; Harrison v. McIntosh, 1 Johns. N. Y. 380; Ingraham v. Mead, 1 Hill, N. Y. 353; Chambers v. Hunt, 3 Harr. Del. 339.

56 Ingraham v. Mead, 1 Hill, N. Y. 353; Phillips v. Townsend, 4 Mo. 101.

57 Anstice v. Holmes, 3 Den. N. Y. 244. A plea that the property was not in the plaintiff is informal, but sufficient, and admits proof of property in the defendant or in a stranger. Dermott v. Wallach, 1 Black, 96. Where the defendant pleads that he took the goods on execution as the property of A, he cannot show title in B, with whose property he had no right to meddle. McChing v. Bergfeld, 4 Minn. 148.

68 Pringle v. Phillips, 1 Sandf. N. Y. 292.

59 Barnes v. Tannehill, 7 Blackf. Ind. 604.

60 In Ohio, the plaintiff may put in a double replication in a case of replevin. Cotter v Doty, 5 Ohio, 393.

because it opposes the defendant's claim to have the chattel returned; it is also a replication, because it maintains the demand in the writ.

When the defendant has pleaded cepit in alio loco the plaintiff may reply, if the facts warrant it, that the locus in quo is known as well by the name given to it in the declaration as by that assigned to it by the defendant, or he may take issue on the plea.

A general replication de injuria cannot be replied in replevin, but the opposite party must take advantage of the error by special demurrer.61

3580. Much of what might have been introduced under the head of evidence has been anticipated in considering other parts of this subject.

The general issue non cepit admits the plaintiff's title, and of course he need not prove it, but he is required to prove that the defendant had the goods in the place mentioned in the declaration, for the action being local, the place is traversable; but as the wrongful taking is continued in every place in which the goods are afterward detained, proof that they were, at any time after the taking, in that place, is sufficient.62

When, in addition to the plea of non cepit, the defendant also pleads property, either in himself or a stranger, the onus probandi is cast upon him.63

In those cases where the plaintiff pleads non demisit or non tenuit to an avowry for rent in arrear, the defendant must prove the demise, because, on the existence of that his title to recover depends, and the demise proved must be precisely the same stated in the avowry; an agreement for a demise is not sufficient.

Rien in arrear, which is the proper plea where the defendant alleges that he has paid up his rent, admits the demise as laid in the avowry, and puts in issue the fact that nothing is due.65 The avowant must recover if he can prove that any rent is due, though he may not prove that all is due which he has alleged. The plaintiff may prove that he has paid the rent to one who had a superior title, as a ground landlord, or for taxes. The time at which the rent was payable, and the amount due, must be proved as laid in the avowry for rent in

3581. The judgment is either for the plaintiff, or for the defendant.

3582. The judgment for the plaintiff varies according to circumstances. When the replevin is in the detinuit, the judgment is that he recover the damages assessed by the jury for the taking and unjust detention, or for the latter only, when the former was justifiable, together with costs.

But if the replevin is in the detinet, the verdict should be, in addition to the above, for the value of the chattels, when still detained, not in a gross sum, but of each separate article, because the defendant may restore some of them, but not the whole, in which case the plaintiff may recover the value of the remainder.68

3583. In the same manner, the judgment in favor of the defendant varies according to the pleadings.

61 Hopkins v. Hopkins, 10 Johns. N. Y. 369.

62 Potter v. North, 1 Saund. 347, a, note (1).

63 Comyn, Dig. Pleader, K, 12; Clemson v. Davidson, 5 Binn. Penn. 399; Seibert v. McHenry, 6 Watts, Penn. 301.

64 Dunk v. Hunter, 5 Barnew. & Ald. 322.

65 Williams v. Smith, 10 Serg. & R. Penn. 203.

66 Bloomer v. Juhel, 8 Wend. N. Y. 448; Hill v. Wright, 2 Esp. 669; see Weidel v. Roseberry, 13 Serg. & R. Penn. 178.

67 Waltman v. Allison, 10 Penn. St. 464. See the reasoning of Coulter, J., as to what may be recovered, under an avowry.

68 In many states the usual judgment where the property remains in the possession of the defendant is for a delivery or for damages at the election of the plaintiff. Pratt v. Donovan, 10 Wisc. 378; Pope v. Jenkins, 30 Mo. 528.

If the replevin is abated, the judgment is that the writ abate, and when, with his plea in abatement, the defendant has avowed, as before mentioned, that he have a return of the chattels.

When the plaintiff is non-suited, the judgment for the defendant, at common law, is that the chattel be restored to him; unless the defendant has pleaded, and it appears from the matter he has himself disclosed, that he has no right to retain the goods; as, where he shows a defective title, excuses the act, or otherwise makes it plain that he has no title, for the court can make no intendment in his favor contrary to his own acknowledgment; the fact must be taken as admitted, and, according to that, he has no right to a return.

Some alterations in the common law judgment upon a non-suit in replevin have been made by statute. The 21 H. VIII, c. 19, s. 3, gives damages and costs to the defendant in cases of non-suit. And by 17 Car. II, c. 7, s. 1, when a non-suit takes place before issue joined, a writ of inquiry may be issued to ascertain "the sum in arrear at the time of distress taken, and the value of the goods or chattels distrained." And in case the plaintiff shall be non-suited after cognizance or avowry made, and issue joined, or if the verdict shall be against the plaintiff, then the jury, at the prayer of the defendant, shall find the value of the goods, and the avowant or cognizor shall thereupon have judgment for such arrearages, or so much thereof as the goods amount to, together with costs."

70

The plaintiff will not be entitled to judgment when there are two defendants, and the defence of one shows that the plaintiff has sustained no injury, or that he is not entitled to a restoration of the chattel; this bars his suit quoad the other, even though the latter has admitted the claim. Thus, where one defendant pleads non cepit, which is found against him, and the other makes an avowry, which is decided in his favor, the plaintiff can have no judgment against either, because the right appears to be in the avowant.

If the avowant succeeds upon the merits, on the trial of his case, the judgment at common law was to have return irreplevisable." The statute of 7 Hen. VIII, c. 4, s. 3, in addition gives costs.72

73

When the judgment is given upon demurrer for the avowant, or him that makes cognizance, for any rent the court may by virtue of 17 Car. II, c. 7, s. 2, award a writ of inquiry, and upon its return, judgment shall be given for the avowant, or him that makes cognizance, for the arrears alleged in such avowry or cognizance to be behind, if the goods or cattle distrained shall amount to that value; and in case they do not amount to that value, then for so much as the goods or cattle distrained shall amount unto, together with full costs of suit.

In some states an alternative judgment for the defendant is given for a return

69 Smith v. Winston, 10 Mo. 299; Chadwick v. Miller, 6 Iowa, 34. 70 See Howard v. Johnson, 1 Ashm. Penn. 58.

"In New Hampshire, judgment for defendant in replevin must be for the value of the chattels replevied and damages, and not for a return of them. Bell v. Bartlett, 7 N. H. 178; Messer v. Bailey, 30 N. H. 9. In some cases a return will not be ordered, where upon the face of the pleadings or from the evidence given it is apparent that the right of possession which the defendant had at the beginning of the suit exists no longer. Where the defendant's title was only as an attaching officer, the mere fact of the dissolution of the attachment does not prevent judgment for a return. Dawson v. Wetherbee, 2 All. Mass. 461.

In many of the states now an alternative judgment is entered for a return or for damages, and the defendant may recover his damages in the replevin suit or may sue on the bond. Hall v. Smith, 10 Iowa, 45; Dilworth v. McKelvy, 30 Mo. 149. In the absence of other proof, interest on the value is the measure of damages. Graves v. Sittig, 5 Wisc. 519. 72 See Easton v. Worthington, 5 Serg. & R. Penn. 132.

73 Gibbs v. Bartlett, 2 Watts & S. Penn. 29.