Potter v North
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 503
COURT OF KING'S BENCH
See Dalton v. Angus, 1881, 6 App. Cas. 795.
1 WMft SAUHD. 346. MICH. 21 CAR. II. REGIS 503 [346] 58. potter versus north. Pasch. 21 Car. II. Regis, Rol. 175. [See Dalton v. Angus, 1881, 6 App. Gas. 795.] Suffolk, to wit.--Henry North, late of Mildenhall in the said county, Esquire, was summoned to answer John Potter of a plea, wherefore he took a horse called a nag, of him the said John, and unjustly detained him against sureties [347] and pledges, &c. And whereupon the said John by Edward Coleman his attorney, complains that the said Henry, on the 18th day of June in the 19th year of the reign of our said Lord Charlea the Second now King of England, at Mildenball aforesaid, in a certain place (1) there, (1) It is necessary in replevin to mention the place of taking, as well as the vill or parish, as is done here, otherwise the defendant may demur: but the omission is cured by pleading over or after verdict. The place, and vill or parish, are material and traversable. Hob. 16, Read v. Hawke. Cro. Eliz. 896, Ward v. Lavik. Moor, 678, Ward \. Lakin. 1 Brownl. 176, Head v. Hmu. i Sid. 9, 10, Weston v. Carter. Ibid. 20, at the end of Hill v. Bunning's case. Garth. ] 86, Treverton v. Hicks.-Where the defendant took the goods in another place than is mentioned in the declaration, he may plead non cepit, and give that fact in evidence, and nonsuit the plaintiff. 1 Str. 507, 508, Johnson v. Wollyer. 2 Mod. 199, Anon. But the defendant cannot have a return of the goods under this plea; 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; and, in order to have a return, avow or make cognisance, stating the cause for which he distrained. East. Ent. 554 b. pi. 2, 3, 555 b. pi. 4, 5, 6. Clift. 636, pi. 5, 644, pi. 14. Lib. Plac. 274, pi. 11. Lill. Ent. 351. 6 Mod. 102, Crosse v. Bilson. Doc. Plac. 316. And the plaintiff cannot traverse any matter in the avowry or cognisance, but must take issue on the traverse of the place. 1 Vent. 127, Anon. 1 Salk. 93, Foot's case, S. C. Garth. 139, Hele v. Foot. 6 Mod. 103, Crosse v. Bilson. Willes' Rep. 475, Bullythorpe v. Turner.(a) And the reason seems to be, because such an avowry is only a suggestion to entitle the defendant to damages under the statutes 7 H. 8, c. 4, s. 3, and 21 H. 8, c. 19, s. 3, which say, that every person who makes avowry or cognisance, &c. if the plaintiff shall be nonsuit, or otherwise barred, shall recover damages and costs. Before those statutes no damages were given, and without such a suggestion the defendant is not within the statute; and therefore the suggestion being only for a particular purpose is not traversable. 1 Salk. 94, Anon. The plea of cepit in alio loco is to be considered as a plea in bar and not in abatement; no affidavit is requisite to be filed, nor is it necessary to be pleaded within four days after the declaration delivered. Barnes, 353, Bullythorpe v. Turner. Willes' Rep. 475, S. C. However, the defendant can only plead non cepit, or cepit in alio loco, in case he never had the cattle in the place in the declaration at all; for if the plaintiff prove that the defendant had the cattle in the place in the declaration, the plaintiff will have a verdict, notwithstanding the first taking was in another place. Therefore, if in truth the defendant took the cattle at another place, and only had them in the place mentioned in the declaration in the way to the pound, he ought to plead that matter specially; 2 Wils. 354, Walton v. Kersop. 3 Wils. 295, Mattravers v. Fosset. Bull. N. P. 54. 2 Bos. & Pull. 480, Abercrombie v. Parkhurst; namely, " because he says that the said defendant now is, and at the said time when, &c. was seised of and in a certain close called and known by the name of N. Close in the parish of B. in his demesne as of fee," and so justify taking the cattle in the said close damage feasant, " and afterwards he the said defendant took and led away the same from the said close to the said place in the declaration called &c., in which &c., and at the said time when &c. had the same there in the way from the said close to the open pound in the parish of A. aforesaid, there to be impounded for the damage so done to the said close called N. Close." The plaintiff may then traverse the taking in N. Close; but the defendant must not traverse the place mentioned in the declaration ; for he hag (a) Cro. Eliz. 372, Watts v. Hegden. 504 POTTER V. NORTH 1 VMS. BAUND. 347. called the Fenn, took the said horse of him the said John, and unjustly detained (2) confessed his having the cattle there and avoided it. Dyer, 246, pi. 70. Cro. Eliz. 667, Sands v. Lane. I Wils. 219, Ryley v. Parkhurst. 3 Wils. 297, Matt-ravers v. fotset. 2 Bos. & Pull. 480.(4) So where the defendant avows in a place which, on the face of the avoivry, appears to be a different one from the place mentioned in the declaration, he must traverse it. As where the taking is alleged in the declaration to be at the pariah of St. Martin in the Fields, in a certain place there called Maiden-lane, and the defendant in his avowry says, that the said place contains one messuage in the parish of St. Paul's, Covent Garden, the avowry is ill without a traverse of the place in the declaration. 2 Lutw. 1147-1151, Petree v. Duke. Hence it appears that replevin differs from trespass clausum fregit. In the latter it is held to be sufficient for the plaintiff to allege the trespass to have been done in a vill or parish only, without mentioning any place, for it is not material: and if the plaintiff do mention a place, the defendant may justify in another place without a traverse, and the plaintiff must ascertain the place in a new assignment. But as there can be no new assignment in replevin, Freem. 238, Cockley v. Pagrave, and it is also an action which requires greater certainty in the declaration, the plaintiff is bound to mention the place of taking at first in his declaration. Hob. 16, Bead v. Hawke. Moor, 678, Ward v. LaJcin. If the defendant should in his avowry or cognisance state the taking to be in a place which apparently agrees with that mentioned in the declaration, but is in fact a different :place, the plaintiff must set it right in his plea in bar. As where the plaintiff states the taking to be in Blackacre, and the defendant in his avowry says that the place contains a certain number of acres, and is called Greenacre, whereof the place in the declaration is parcel, and avows for damage feasant in his freehold, or for some other cause ; there, in case Blackacre and Greenacre are different places, the plaintiff may allege that he took the cattle in Blackacre, and traverse that it is parcel of Greenacre; or if the avowry should not state Blackacre to be parcel of Greenacre, the plaintiff may either demur specially because it is not so stated, or if he chooses to waive that defect, may traverse the taking in Greenacre. 22 Edw. 4, 51 a. Carth. 185, Treverlon v. Hicks. If the parties agree in the place, but vary in the quantity of land which the place contains, as where the defendant says in his avowry that the place contains twenty acres, the plaintiff may in his plea in bar state the true quantity, and then proceed in his justification without any traverse. (2) Eeplevin may be brought to recover goods which are still detained by the person who took them, and this is called replevin in the detinet, which has been long since obsolete. But the modern action of replevin is in the detinuit which is so called, because, as the word imports, it is brought when the goods have been delivered to the party, which is done by the sheriff upon a writ of replevin, or plaint levied before him. Bull. N. P. 52. The plaintiff in replevin in the detinet was entitled to recover as well the value of the goods as damages for taking them; F. N. B. 69 (L.). Co. Ent. 610, 611; but in the present action in the detinuit he can only recover damages for the taking. 2 Lutw. 1150, 1151, Petree v. Duke.(c) (b) [So where in replevin for taking and detaining, the defendant avowed for rent arrear, to which the plaintiff pleaded in bar, that after the taking and before the impounding, he tendered the rent and expenses; on special demurrer, assigning for cause that the plea did not go to the taking, but only to the detaining, the plea was held good, the tortious detention being a taking. 5 A. & E. 142, Evans v. Elliott, 6 Nev. & M. 606, S. C.] (c) Although in the modern action of replevin the declaration is in the detinuit, yet the first step in the action is to obtain the goods by a compulsory process, and therefore the plaintiff does in fact recover the goods and damages for the taking just as much in this action as in the action in the detinet. "There does not appear in any of the books any proceeding in replevin which has not commenced by writ, requiring the sheriff to cause the goods of the plaintiff to be replevied to him, or by plaint in the Sheriffs Court, the immediate process upon which is a precept to replevy the goods of the party levying the plaint. Both those modes of proceeding are in rem. i.e. I WMS. SAUHD. M7. MICH. 21 CAR. II. REGIS 505 him against sureties and pledges, until, &c.; wherefore he the said John says that he is worse, and has damage to the value of 401.; and therefore he brings suit, &e. And (3) the said Henry North, by Francis Woodward his attorney, comes and defends the wrong and injury, when, &c. and as bailiff (4) of one Sir Henry North (3) There is a difference between a justification to an action of trespass, and an avowry or cognisance. In trespass it is sufficient for the defendant to allege in his plea matter to excuse the trespass; but in replevin the avowant, or person making cognisance, is in the nature of a plaintiff; for he is to have a return, and therefore the avowry or cognisance...
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