People ex rel. Tower v. Niagara C. P.

4 Wend. 217

Opinion

By the Court,

Savage, Ch. J.

It is said, in behalf of the relator, that a plea of non cepit in replevin is like the general issue in other actions; it may be so in some respects, but if found for the defendant, if the jury say that he did not take the goods, how can there be a judgment pro retorno habendo ? Non cepit is a plea in bar, not involving the merits of the action ; and if a defendant claims a return of the goods, he must add an avowry or cognizance inducing a return, or he is not entitled to judgment for a return. (1 Chitty, 490. 1 Saund. 374, n. 1. 1 Strange, 507.) The mandamus is denied.