Moulton v. Bird

Shepley, C. J., orally. Can there, upon this verdict, be a judgment for return ? The pleadings seem inconsistent, yet they are allowable by our statute. At common law, the plea of non cepit admits property in the plaintiff. How then can [298] a return be ordered. In Whitwett v. Wells, 24 Pick. 25 — 32, it is said to be “ well settled, on issue of non cepit, there can be no return, for it admits the property of the plaintiff. But that is where the only plea is non cepit.” In this case, it is true, there was no issue taken upon the point, for the law does not require one ; but there was a representation, lawfully before the jury for their consideration, that the special property and the right of possession, were in the defendant. By the verdict, it is not the plaintiff, but the defendant, that ■prevailed. That verdict must have been rendered upon the ownership. The taking had been admitted and justified by the brief statement. The whole record must be examined together. “ In cases where there is a plea of property in the defendant, or in a stranger, and the issue is determined for the defendant, there should be a return.” “ The general rale is stated to be, that, where it appears from the record, that the defendant was in possession at the time of the replevin, he shall, if he prevail, have a return.” In this case, it appears of record by the brief statement, •which is made equivalent to a special plea, by statute, that ■the property was alleged to be in Carter. The issue was found for defendant; not specially on that plea, because no issue was joined on it. Yet it is aj>parent by the record, that no other fact was in issue, than that of property, which must have been found for defendant, and he, being in possession, is entitled to a Judgment for return.