Watson v. Watson

10 Conn. 75

• Court: Supreme Court of Connecticut
• Decided: June 15, 1834
• Status: Published

Opinion

Church, J.

1. The bill of exceptions is objectionable. It presents no question distinctly, and is not confined to any point or question made at the trial, but brings up, as on a demurrer to evidence, the whole of the plaintiff’s case. This practice is inadmissible. McDonald v. Fisher, Kirby 339. 1 Swift's

Dig. 771. 2 Tidd’s Prac. 786. & seq. [911.]

2. By the common law, the general issue of non cepit admits property in the plaintiff, and denies only the taking. The law of this state, as was determined in the case of Watson v. Watson & al. 9 Conn. Rep. 141. is essentially different from the common law, in a very important particular; which is, that a writ of replevin is sustainable only in cases of attachment and distress. The plea of non cepit, therefore, puts the attachment or distress in issue; and because from the bill of exceptions it does not appear, that the beasts of the plaintiff were either attached, distrained or impounded, the justice was justified in determining the issue in favour of the defendants; and therefore, the judgment of the superior court, affirming the judgment of the justice, should be affirmed.

The other Judges were of the same opinion.

Judgment affirmed.