Loop v. Williams

The opinion of the court was delivered by Ross, J. In Plainfield v. Batchelder, 44 Vt. 9, it was held, as we think correctly, that the plea of not guilty, in this species of [415] replevin, puts in issue every material fact, as well the property in the liquors as the talcing and detention. This kind of replevin is the creature of the statute. It did not exist at common law. The general issue in replevin suits at common law, was non cepit or non detinet, and only put in issue the taking or detention. The statute granting the right to replevy goods which have been attached or taken on execution, provides that “ the general issue shall be joined on the plea of not'guilty.” It not only makes not guilty a proper plea in the action, but provides that the general issue shall be joined on that plea. This language seems to indicate an intention on the pari of the legislature to do away with the intricate and often prolix pleadings which were necessary in replevin at common law, and to give the defendant the right under this plea to show anything relating to the ownership of the property, its taking, or detention, which will defeat the plaintiff’s right to recover on matters alleged in the declaration. In this view of the defendant’s rights under the plea of not guilty, his notice becomes unnecessary. He could show under this plea, to defeat the plaintiff’s right of recovery, that he seized and held the liquors replevied, on a lawful warrant. ' Hence, the county court committed no error in admitting the record evidence of the proceeedings under which the defendant took and held the liquors. II. We have discovered no lack of substance in the notice, if the notice were necessary. The statute allowing a defendant to state his defence by notice instead of by special plea, was passed to avoid the intricacies and formalities of a special plea. It simply requires that the defendant shall fairly notify the plaintiff of the substance of all the evidence upon which he will rely to establish his defence, without regard to the form or logical order of its statement. The notice in this case states the substance of the defence, and fairly notifies the plaintiff of all the evidence relied on to establish it. The manner in which the complaint was sworn to, is form and not substance. The substantial thing to be shown in this particular, was, that the complainants made oath to the truth of the complaint. This the plaintiff is notified of by the statement, that the complaint was duly sworn to. So, too, the verifi [416] cation attached to a special plea, is only an averment that the pleader is ready to establish the truth of his plea. It is only saying in a technical form what the defendant has said in his notice, when he states that he “ shall give in evidence and rely upon in defence and justification, the following special matter,” which he proceeds to detail. III. It is objected that the warrant shown in defence, whether under the plea of not guilty or under the notice, is illegal and void, because it directed the defendant to search for and seize liquors kept by the plaintiff for sale contrary to law, either in that part of the building occupied by him, or in the store, rooms, and cellar occupied by Landon & Huntoon. It did not direct the defendant to search for liquors kept by Landon & Huntoon. All the rooms specified were in the same building. One of the terms used in § 22, ch. 94, of the Gen. Sts., as descriptive of the place which may be searched, is, “ Other building or place in said town.” The warrant in this respect is within the exact language of the statute. Neither is it open to the objection, if objection it be, that under it, two seizures against different owners could have been made. The officer was only commanded to search for such liquors in the various apartments of the building as were kept by the plaintiff. We do not think it commanded him to seize liquors in the apartments occupied by Landon & Huntoon, unless they were in the keeping of the plaintiff. The plaintiff has no right to complain that he was not the occupant of all the apartments searched. Their search could not harm him if he had nothing stored there, nor did it disturb his occupancy of them, unless he was an occupant. When Landon & Huntoon complain of the search of their apartments for liquors kept in them contrary to law by other persons, and come in collision with the officer making such search, it will be time to consider and decide their rights, and determine whether any of them has been infringed. It is enough in this case, that the officer was directed to search just such a place as the statute in terms provides for, and that the plaintiff did not stand in such a relation to any of the apartments searched, that he has a right to complain. This disposes of all the plain [417] tiff’s exceptions which are relied on, except such as may be considered. with the defendant’s exceptions. IV. The statute provides that if the judgment in such cases shall be against the plaintiff, the liquors replevied “ shall be delivered to the defendant in the replevin, or to such officer as shall have warrant or authority to hold or destroy the same under the original seizure proceedings.” Gen. Sts. ch. 94, § 40. The county court refused to render any judgment in this case for the return of the liquors replevied, to which the defendant excepted. In this we think there was error. The defendant, it is true, was a deputized officer, and the record of the proceedings does not show that he held a warrant authorizing him to destroy the liquor, or that any person held such warrant. Unless it was shown that some other officer had the right to the custody of the liquors, inasmuch as it is shown that the defendant was entitled to the custody of them at the time of the replevin, the presumption is that he is entitled to their return. The record shows that the liquors have been adjudged forfeited ; but that would not take them from the custody of the defendant till a warrant was issued to some other officer. The defendant would have a right to retain the custody till such warrant is issued. If a warrant had been issued to some other officer, no harm could be done if the court had rendered judgment for the return of the liquors in the alternative, “ to the defendant or such officer as shall have warrant,” in the language of the statute. By § 41, ch. 94, Gen. Sts., the final execution in the seizure proceedings, was stayed till the termination of this suit. The final execution must include the warrant which turns the liquors over to the legally appointed agent of the town for examination, as well as the warrant which orders their destruction if not accepted by that agent. If that agent accepts the liquors as the property of the town, that fully executes the judgment of forfeiture. While the liquors are held by the officer serving the replevin writ, the magistrate before whom the seizure “proceedings were pending, had no control over the liquors, and could not turn them over to the town for examination. The town agent can examine only such liquors as are fully forfeited to the town ; and [418] this could not be fully determined till the termination of the replevin suit. Until the issuing of a warrant to execute the judgment of forfeiture to some other officer, the defendant would have the legal custody of the liquors had not the replevin suit intervened. If the magistrate should, immediately upon the termination of the replevin suit, issue his final warrant to some other officer, such other officer would be entitled to their custody, as against the defendant. Hence, the statute provides that the judgment in the replevin suit, if against the plaintiff, shall be for the return of the liquors to the defendant, or such officer as shall hold the final warrant. When this suit is terminated against the plaintiff, the officer serving the replevin writ can no longer legally hold them. The county court could not warrantably assume that the seizure proceedings had failed by reason of the death of the magistrate before whom they were pending, or of his failure to be re-elected. Until the contrary is shown, it is to be presumed that there is power resting in some tribunal to execute the judgment' of forfeiture, and that the defendant has the right to have the replevied liquors returned to him, to hold to answer the demand of the officer holding the final warrant. When such warrant shall have been issued, some one has the right to a judgment -for the custody of the liquors. The case shows that that right is not in the plaintiff. It must, therefore, be in the defendant, until it is shown that a final warrant has been issued ; but in him only to answer the demand of the officer who may hold the final warrant or warrants for the execution of the judgment of forfeiture. Hence, no harm can result if the judgment is rendered in the alternative, in the language of the statute. We think the defendant was entitled to such. a judgment in the county court. The judgment of the county court is, therefore, reversed, and judgment is rendered for the defendant to recover nominal damages and his costs, and that the liquors replevied be returned to the defendant, or to such officer as shall have warrant or authority to hold or destroy the same under the original seizure proceedings.