Vose v. Hart

Treat, C. J. Declaration in replevin. Plea non cepit. Verdict for the defendant. Judgment that he recover his costs, and have a return of the 'goods replevied. The judgment cannot be sustained. It is broader than the issue. The defendant was only entitled to a judgment for costs, the right of property not being in issue. The plea of non cepit admitted the right of property to be in the plaintiffs, and merely put in issue the taking of the goods. If the defendant desired a return of the goods, he should have put the right of property in issue, by formally traversing the plaintiff’s allegation of right, or by pleading specially that the right was in some other person. In one of these ways only, could he controvert the plaintiffs’ claim, and impose on them the burden of showing that the goods replevied were their property. As the case stood, the jury had only to pass on the matter of the caption by the defendant. Anderson v. Talcott, 1 Gilman, 365. The Court erred, therefore, in awarding a writ of retorno hdbendo. The judgment will he reversed, and the cause remanded, with leave to the defendant to put the right of property in the goods in issue, by the filing of additional pleas. Judgment reversed.