Gilchrist, J.
To support the action of replevin, the plaintiff must have had at the time of the caption, either the general property in the goods taken, or a special property therein. In this respect it is like the action of trover. If the plaintiff has not the immediate right of possession, replevin cannot be supported, but the party must proceed by an action on the case. 1 Ch. Pl. 187, 188.
The defendant pleaded the general issue, non cepit moda et form,a. This plea puts in issue not only the taking, but [446]*446also the taking in the place mentioned in the declaration. 1 Ch. Pl. 537. And the plaintiff will fail, unless he prove the taking in the place mentioned. Johnson vs. Wollyer, 1 Strange 507. But under this issue which denies the taking merely, the defendant cannot deny the plaintiffs’ property, which is in substance admitted by the plea of non cepit. Wilkinson on Replevin 81; Gilbert on Replevin 166; 3 Stark. Ev. 1295.
But whatever facts are put in issue by the plea of non cepit are not contested in this case. The defendant does not deny the taking in the place mentioned, but says in his brief statement that the property belonged to one Hayden, and that he took it as Hayden’s property by virtue of sundry writs against him.
To prove his official character, and that he had in his possession the writs against Hayden, described in his brief statement, he relied on the admissions of the plaintiff to that effect, and to this extent there is no controversy between the parties.
Admitting that the property still belonged to Hayden, notwithstanding the alleged sale to the plaintiffs, on account of its fraudulent character-, the question arises whether the defendant has shown any authority to interfere with it.
He comes here representing creditors, and they may avoid thé sale on account of its fraudulent character as to them. But the sale is valid between the parties, and none but creditors can avoid it. But every person who chooses to bring a suit is not therefore a creditor, for something more than his allegation is necessary in order to prove his debt. Creditors or persons calling themselves such, must prove their debts, and until this is done they have no right to interfere.
If, then, creditors can interfere only on proof of an indebtment by the alleged owner of the property, the sheriff, who is an agent merely, can have no rights greater than those of the principal whom he represents. If a sheriff take my goods by virtue of a writ, his process will be a sufficient [447]*447justification in an action of trespass which I might bring, against him. It would be a sufficient warrant for his interference. But if he take goods in my possession on the ground that ray title is a voidable one, he must show that he has a right to avoid it. And as in the present case his right to interfere depends on the existence of a debt in favor of the attaching creditor, he was bound at least to make out a prima facie case of indebtment.
But the defendant excepts to the ruling of the court which excluded, as he says, his evidence on which he relied to make' out a prima facie case of indebtment. This evidence was that he had in his hands a writ against Hayden in which there was a count upon a promissory note, that the action had been entered and was then pending in the common pleas, and that there had been no denial of the signature of the’ note. But this evidence, if admitted, would not have strengthened his case. All these proceedings merely show that the plaintiff in that action alleged that Hayden owed him, and had commenced a process for the recovery of the debt. The omission to deny the signature to the note proves at most that Hayden’s defence was not that the signature was forged, but it by no means shows that he had admitted the debt, nor does it prove the debt in any other manner. The proceedings tend to show that the plaintiff supposed that Hayden was indebted to him, but they prove nothing more. These remarks are made upon the supposition that the rulings of the court were incorrect, in relation to which other questions arise which we shall shortly consider.
We have been referred to the case of Widgery vs. Haskell, 5 Mass. 144, as decisive of the point that in a case like the present, the sheriff is not bound to prove the existence of a debt. That case was replevin for the ship Mac. The defendant pleaded that the ship was the property of John Taber & Son, and traversed the property of the plaintiffs, on which traverse issue was joined. It appeared that the defendant was a deputy sheriff, and attached the ship by virtue [448]*448of a Writ in favor of Jacob Barker against John Taber & Son, and Parker, J. ruled on the trial that the defendant was not bound to prove the debt on which the writ was instituted. It was held by the supre'íüé 6'ourt that this point was not before them, because it had been agreed by the parties that a verdict should be entered for either of the parties according to the opinion of the court, whether the plaintiffs had from the facts stated proved their property in the ship, or not. The case, therefore, is not an authority beyond the respect to which the nisi prius ruling of Mr. Justice Parker is entitled, to prove the position for which it was cited. The only issue Was on the ownership of the property. If the' parties chose to put their case upon that issue, they could try only the questions which that issue raised; and it raised no' question as to the existence' of any debt from Barker.
The case of Damon vs. Bryant, 2 Pick. 411, accords with and supports the views we have intimated in this case. There, a sheriff sued in trespass by a vendee of goods, contested the plaintiff’s title on the ground of fraud. It was objected that the defendant gave' no evidence of a debt from the supposed fraudulent vendor of the goods, and the court were of opinion that this objection was a valid one. It was said that the distinction was, that whére the execution or writ upon which goods are taken is against the plaintiff himself, the officer is justified by the precept itself, for that commands him to take the goods of the plaintiff, and is a sufficient authority. But where the goods taken are claimed by a person who was not a party to the suit, and he brings trespass,- and his title is contested on the ground of fraud under the Stat. 13 Eliz. c. 5, a judgment must be shown, if the officer' justifies under an execution, or a debt if under a writ of attachment, because it is only by showing that he acted for a creditor, that he can question the title of the vendee. Lake vs. Billers, 1 Ld. Raym. 733; Ackworth vs. Kempe, Dougl. 41; Savage vs. Smith, 2 W. Bl. 1104. The reason for Requiring proof of the debt is as strong in replevin' as in tres[449]*449pass, and we are of opinion that the defendant was bound to prove that there was a debt actually due from. Hayden to the Despatch Line.
But the defendant alleges that he was surprised by the construction put upon the plaintiffs’ admissions. These admissions were that the defendant was a deputy sheriff, and had in his hands the writs described in his brief statement.
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Gilchrist, J.
To support the action of replevin, the plaintiff must have had at the time of the caption, either the general property in the goods taken, or a special property therein. In this respect it is like the action of trover. If the plaintiff has not the immediate right of possession, replevin cannot be supported, but the party must proceed by an action on the case. 1 Ch. Pl. 187, 188.
The defendant pleaded the general issue, non cepit moda et form,a. This plea puts in issue not only the taking, but [446]*446also the taking in the place mentioned in the declaration. 1 Ch. Pl. 537. And the plaintiff will fail, unless he prove the taking in the place mentioned. Johnson vs. Wollyer, 1 Strange 507. But under this issue which denies the taking merely, the defendant cannot deny the plaintiffs’ property, which is in substance admitted by the plea of non cepit. Wilkinson on Replevin 81; Gilbert on Replevin 166; 3 Stark. Ev. 1295.
But whatever facts are put in issue by the plea of non cepit are not contested in this case. The defendant does not deny the taking in the place mentioned, but says in his brief statement that the property belonged to one Hayden, and that he took it as Hayden’s property by virtue of sundry writs against him.
To prove his official character, and that he had in his possession the writs against Hayden, described in his brief statement, he relied on the admissions of the plaintiff to that effect, and to this extent there is no controversy between the parties.
Admitting that the property still belonged to Hayden, notwithstanding the alleged sale to the plaintiffs, on account of its fraudulent character-, the question arises whether the defendant has shown any authority to interfere with it.
He comes here representing creditors, and they may avoid thé sale on account of its fraudulent character as to them. But the sale is valid between the parties, and none but creditors can avoid it. But every person who chooses to bring a suit is not therefore a creditor, for something more than his allegation is necessary in order to prove his debt. Creditors or persons calling themselves such, must prove their debts, and until this is done they have no right to interfere.
If, then, creditors can interfere only on proof of an indebtment by the alleged owner of the property, the sheriff, who is an agent merely, can have no rights greater than those of the principal whom he represents. If a sheriff take my goods by virtue of a writ, his process will be a sufficient [447]*447justification in an action of trespass which I might bring, against him. It would be a sufficient warrant for his interference. But if he take goods in my possession on the ground that ray title is a voidable one, he must show that he has a right to avoid it. And as in the present case his right to interfere depends on the existence of a debt in favor of the attaching creditor, he was bound at least to make out a prima facie case of indebtment.
But the defendant excepts to the ruling of the court which excluded, as he says, his evidence on which he relied to make' out a prima facie case of indebtment. This evidence was that he had in his hands a writ against Hayden in which there was a count upon a promissory note, that the action had been entered and was then pending in the common pleas, and that there had been no denial of the signature of the’ note. But this evidence, if admitted, would not have strengthened his case. All these proceedings merely show that the plaintiff in that action alleged that Hayden owed him, and had commenced a process for the recovery of the debt. The omission to deny the signature to the note proves at most that Hayden’s defence was not that the signature was forged, but it by no means shows that he had admitted the debt, nor does it prove the debt in any other manner. The proceedings tend to show that the plaintiff supposed that Hayden was indebted to him, but they prove nothing more. These remarks are made upon the supposition that the rulings of the court were incorrect, in relation to which other questions arise which we shall shortly consider.
We have been referred to the case of Widgery vs. Haskell, 5 Mass. 144, as decisive of the point that in a case like the present, the sheriff is not bound to prove the existence of a debt. That case was replevin for the ship Mac. The defendant pleaded that the ship was the property of John Taber & Son, and traversed the property of the plaintiffs, on which traverse issue was joined. It appeared that the defendant was a deputy sheriff, and attached the ship by virtue [448]*448of a Writ in favor of Jacob Barker against John Taber & Son, and Parker, J. ruled on the trial that the defendant was not bound to prove the debt on which the writ was instituted. It was held by the supre'íüé 6'ourt that this point was not before them, because it had been agreed by the parties that a verdict should be entered for either of the parties according to the opinion of the court, whether the plaintiffs had from the facts stated proved their property in the ship, or not. The case, therefore, is not an authority beyond the respect to which the nisi prius ruling of Mr. Justice Parker is entitled, to prove the position for which it was cited. The only issue Was on the ownership of the property. If the' parties chose to put their case upon that issue, they could try only the questions which that issue raised; and it raised no' question as to the existence' of any debt from Barker.
The case of Damon vs. Bryant, 2 Pick. 411, accords with and supports the views we have intimated in this case. There, a sheriff sued in trespass by a vendee of goods, contested the plaintiff’s title on the ground of fraud. It was objected that the defendant gave' no evidence of a debt from the supposed fraudulent vendor of the goods, and the court were of opinion that this objection was a valid one. It was said that the distinction was, that whére the execution or writ upon which goods are taken is against the plaintiff himself, the officer is justified by the precept itself, for that commands him to take the goods of the plaintiff, and is a sufficient authority. But where the goods taken are claimed by a person who was not a party to the suit, and he brings trespass,- and his title is contested on the ground of fraud under the Stat. 13 Eliz. c. 5, a judgment must be shown, if the officer' justifies under an execution, or a debt if under a writ of attachment, because it is only by showing that he acted for a creditor, that he can question the title of the vendee. Lake vs. Billers, 1 Ld. Raym. 733; Ackworth vs. Kempe, Dougl. 41; Savage vs. Smith, 2 W. Bl. 1104. The reason for Requiring proof of the debt is as strong in replevin' as in tres[449]*449pass, and we are of opinion that the defendant was bound to prove that there was a debt actually due from. Hayden to the Despatch Line.
But the defendant alleges that he was surprised by the construction put upon the plaintiffs’ admissions. These admissions were that the defendant was a deputy sheriff, and had in his hands the writs described in his brief statement. The defendant says that he did not suppose from his understanding of those admissions, that there was any controversy about the debts alleged to be due from Hayden to the several plaintiffs, in the writs. It is difficult to make an absolute rule upon this subject, applicable to all cases. The granting or refusing a new trial must depend in a great measure upon the legal discretion of the court, guided by the nature and circumstances of the case, and directed with a view to the attainment of justice. Bright vs. Eynon, 1 Burr. 390. The court in its discretion may grant a new trial, on the ground of surprise and perturbation on the part of counsel, arising from sudden and dangerous sickness occurring in his family,- and coming to his knowledge during the trial, where such perturbation deterred the counsel from making an important claim on behalf of his client, which he had a right to make. Cutler vs. Rice, 14 Pick. 494. The defendant rested his case upon the evidence. He cannot properly say that he was surprised that the legal effect of that evidence was not so extensive as he hoped, and make that a ground for a new trial. That a party is surprised is sometimes a reason for granting him a new trial. Vernon vs. Hankey, 2 T. R. 113; Hartwright vs. Badham, 11 Price 383. In Gist vs. Mason, 1 T. R. 84, the defendant moved for a new trial, ok the ground that he had not offered evidence that a certain kind of trading was illegal, because ho presumed that the jury, of their own knowledge, must have concluded that the illegality of the contracts was known to the parties at the time of making them. Ashhurst, J. said that the defendant made the application in order to supply his own negligence,[450]*450when it was evident he was not taken by surprise at the trial It is possible that the counsel might have been surprised, although we do not well see how even that could have been so, that the court did not agree with him in his views of the law, although that so often happens in the trial of cases that he can hardly ask any indulgence on such ground. The reason would apply to any case where the evidence has not the effect anticipated; and the meaning and extent of the admission are to us so clear, that we do not think it would be a proper exercise of our legal discretion to grant a new trial for this reason.
The defendant also moves for a new trial upon another ground. It appears that after the evidence was closed, the case argued, and the judge had charged the jury, the defendant moved for leave to lay evidence before the jury, that Hayden was indebted to the Despatch Line of Packets. We will not say that cases might not exist where such an application would be reasonable, and should be granted in the exercise of a sound legal discretion. The case in which it would be allowed, must be one of extreme hardship to the' applicant. The court on such a motion will not hear an affidavit of any facts which might have been brought forward* at nisi prius. Hope vs. Atkins, 1 Price 143. The party' cannot be allowed to take the chance of a trial in such cases, and if he should fail, to reserve to himself the alternative of applying to the court for a new trial. Harrison vs. Harrison, 9 Price 89. In addition to this objection, we are asked to rescind the ruling which it was competent for the court? below to make in the exercise of its legal discretion. Even where the defendant’s witnesses came into court after the evidence was closed, but while the plaintiffs’ counsel was addressing the jury, and the court refused to permit them to testify, it was intimated that such refusal was not a ground' for a new trial. Leggett vs. Boyd, 3 Wend. 376. In that case it is said that it is scarcely possible to conceive a case' Where the court will interfere with the decision of a circuit* [451]*451judge, who has exercised bis legal discretion in refusing to delay the trial of a cause until the parly can procure the attendance of a witness who is unexpectedly absent when he is called. Certain matters of practice must, from the necessity of the case, be left to the discretion of the court; and when that discretion has been exercised, a revision of it would be attended with excessive delay and expense. The parties must be prepared for trial, they must have reflected on the legal effect of their evidence, and must not depend upon the indulgence of the court to relieve them from the consequences of their own negligence. If cases were more thoroughly prepared, evidence put in more rapidly, and less time consumed in vague and discursive examinations of witnesses, the substantial merits of controversies would be more readily perceived by juries, and the public confidence in the administration of justice would be promoted.
In the present case, the exclusion of the evidence rested entirely in the discretion of the court, and its decision upon the point we cannot revise.
Judgment on the verdict.