The opinion of the Court was delivered by
Kennedy, J.
The court below seem to have thought that great hardship, if not injustice, would have been done by rendering a judgment upon the verdict, as found by the jury, in favour of the defendant below, who is the plaintiff in error here. If so, it is only to be regretted that they did not, upon the application of the plaintiff below, set the verdict aside and grant a new trial, instead of arresting the judgment. It was within their discretion to have granted a new trial; and if they were convinced, from the evidence, that the jury had either mistaken the facts of the case, or the law of it, they unquestionably, if injustice, in their opinion, would be the inevitable consequence of rendering judgment on the verdict, ought to have set it aside. But no such discretionary power can be exercised by this court. And, indeed, seeing we cannot conveniently be furnished with the same means which the court below must always have of judging rightly in this respect, it would not seem to be right or expedient, so far as the administration of justice is concerned, which is certainly the great, if not the only object to be attained by the exercise of such a power, that we should have it. The only question for our consideration is, does the face of the record warrant the arrest of the judgment upon the verdict by the court below? ■ If it does not, and the issues upon which the parties went to the trial of the action were material, and the verdict of the [35]*35jury thereon be such as to determine them, we must reverse the act of the court, arresting the judgment, and enter judgment upon the verdict in favour of the plaintiff in error, however great the injustice may be that will in this particular instance arise from it.
If any one of the defendant’s pleas below had been bad, and such in law, admitting it to be true, as could not have precluded the plaintiff there from maintaining his writ of replevin, there might have been some colour for arresting the judgment, upon the supposition that the defendant is an actor in replevin as well as the plaintiff, though, perhaps, properly speaking, he is only to be regarded in the light of a plaintiff where the writ is founded on distress, and not sued out as a substitute for trover or trespass, as it may be in this state and some others of the Union. The reason for arresting judgment upon a verdict given for the plaintiff, is either because the plaintiff has set out no cause of action in his declaration, or having introduced into it two or more counts, his cause of complaint in one or more, if not all, is not sufficient in law to enable him to support his action; and hence, upon the principle of analogy, had any one of the defendant’s pleas been had, it might with some plausibility, perhaps, have been alleged that, notwithstanding the verdict, which is general upon all the pleas and issues joined thereon, in his favour, he was not entitled to have judgment upon it; because it might possibly be, for aught that could be known to the contrary, that the jury had given their verdict in his favour upon the bad plea alone. But then there is no ground for such allegation and presumption here; for either one of the pleas, if true, is sufficient in law to show that the plaintiff below had no right to maintain the writ of replevin, and that he had no right whatever to have the goods in question delivered over to him, as they were, by the sheriff, under the authority of the writ. The defendant in replevin may plead property in himself or in a stranger, either in bar or in abatement; and either plea, if established, will destroy the plaintiff’s right of action. Presgrave v. Saunders, 1 Salk. 5; S. C., 6 Mod. Rep. 81; Holt 562; 2 Ld Raym. 984; 1 Ventr. 249; Gilb. on Replevin 127. And whether the property be in the defendant or a stranger, the defendant ought to have a return, because he had the possession, which was illegally taken from him by the replevin, in a manner to which the plaintiff had no right. Butcher v. Porter, 1 Salk. 94; S. C., Carth. 243; Gilb. on Replevin 127, 128. So the defendant may plead property in the plaintiff and J. S. in abatement of the replevin; and although it admits a right of deliverance in the plaintiff, yet it does not allow it under a writ in the name of the plaintiff alone; and if the defendant make conusance, he will, upon establishing the truth of his plea', be entitled to a return. Gilb. on Replevin 128. Now upon the principle of these authorities, and the reason of them, ras also that of the thing itself; the defendant may plead property in the plaintiff and himself, and, if [36]*36true, it must not only defeat the plaintiff in his writ, but entitle the defendant to a return of the property; because the latter having had the possession of it, coupled with an interest which makes his case the stronger, until improperly deprived thereof by the sheriff, under the plaintiff’s writ, which he had no right to use for such purpose, has a right to be placed in statu quo, that is, restored to the possession of the property as the joint owner thereof. But the case of the defendant here is still stronger, as is shown by his plea and the finding of the jury. From these it would appear that he was not only a joint owner of the property, but, in addition thereto, had a lien or claim upon it, for which it was to be withheld from-the plaintiff until the defendant should be satisfied in the manner agreed on between them for his claim.
Seeing, then, that each of the pleas is good and sufficient in law, and the jury having found generally in favour of the defendant upon them all, it follows that the plaintiff below has. no right to retain the property. But the arrest of the judgment by the court below went to protect the plaintiff in the possession of it, or at least to deprive the defendant of the judgment and process of the court to have a. return thereof, as well, as a recovery of the damages assessed for the detention of it. This, however, cannot be upon any principle recognised as known to the law. If the court below, from the evidence given on the trial of the cause, could not, consistently with the principles of law and justice, approve and confirm the verdict by rendering a judgment upon it, they ought, as has been already suggested, to have set it aside and granted a new trial. It was said on the argument, by the counsel for the defendant in error, that the verdict for the damages was bad: that the defendant in the court below was not entitled to claim, and could not recover, damages in such a case. It is true that he could not recover damages for the value of the property, on account of the plaintiff below having taken it under the writ of replevin; but if improperly taken under it, that is, without right on the part of the plaintiff to do so by such writ, the defendant had clearly a right to claim damages at the hands of the jury for the detention of the property, according to the case of Easton v. Worthington, 5 Serg. & Rawle 130; and this is all that the jury profess, by their verdict, to have allowed.
Where the defendant in replevin avows the taking of the property as a distress for rent in arrear, or any other sufficient cause of the like kind, or makes conusance, such avowry is considered in the nature of a declaration; Co. Lit. 303; 1 Saund. 347 b, n. 3; and the party making it, in the nature of a plaintiff; 1 Saund. 347 b, n.
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The opinion of the Court was delivered by
Kennedy, J.
The court below seem to have thought that great hardship, if not injustice, would have been done by rendering a judgment upon the verdict, as found by the jury, in favour of the defendant below, who is the plaintiff in error here. If so, it is only to be regretted that they did not, upon the application of the plaintiff below, set the verdict aside and grant a new trial, instead of arresting the judgment. It was within their discretion to have granted a new trial; and if they were convinced, from the evidence, that the jury had either mistaken the facts of the case, or the law of it, they unquestionably, if injustice, in their opinion, would be the inevitable consequence of rendering judgment on the verdict, ought to have set it aside. But no such discretionary power can be exercised by this court. And, indeed, seeing we cannot conveniently be furnished with the same means which the court below must always have of judging rightly in this respect, it would not seem to be right or expedient, so far as the administration of justice is concerned, which is certainly the great, if not the only object to be attained by the exercise of such a power, that we should have it. The only question for our consideration is, does the face of the record warrant the arrest of the judgment upon the verdict by the court below? ■ If it does not, and the issues upon which the parties went to the trial of the action were material, and the verdict of the [35]*35jury thereon be such as to determine them, we must reverse the act of the court, arresting the judgment, and enter judgment upon the verdict in favour of the plaintiff in error, however great the injustice may be that will in this particular instance arise from it.
If any one of the defendant’s pleas below had been bad, and such in law, admitting it to be true, as could not have precluded the plaintiff there from maintaining his writ of replevin, there might have been some colour for arresting the judgment, upon the supposition that the defendant is an actor in replevin as well as the plaintiff, though, perhaps, properly speaking, he is only to be regarded in the light of a plaintiff where the writ is founded on distress, and not sued out as a substitute for trover or trespass, as it may be in this state and some others of the Union. The reason for arresting judgment upon a verdict given for the plaintiff, is either because the plaintiff has set out no cause of action in his declaration, or having introduced into it two or more counts, his cause of complaint in one or more, if not all, is not sufficient in law to enable him to support his action; and hence, upon the principle of analogy, had any one of the defendant’s pleas been had, it might with some plausibility, perhaps, have been alleged that, notwithstanding the verdict, which is general upon all the pleas and issues joined thereon, in his favour, he was not entitled to have judgment upon it; because it might possibly be, for aught that could be known to the contrary, that the jury had given their verdict in his favour upon the bad plea alone. But then there is no ground for such allegation and presumption here; for either one of the pleas, if true, is sufficient in law to show that the plaintiff below had no right to maintain the writ of replevin, and that he had no right whatever to have the goods in question delivered over to him, as they were, by the sheriff, under the authority of the writ. The defendant in replevin may plead property in himself or in a stranger, either in bar or in abatement; and either plea, if established, will destroy the plaintiff’s right of action. Presgrave v. Saunders, 1 Salk. 5; S. C., 6 Mod. Rep. 81; Holt 562; 2 Ld Raym. 984; 1 Ventr. 249; Gilb. on Replevin 127. And whether the property be in the defendant or a stranger, the defendant ought to have a return, because he had the possession, which was illegally taken from him by the replevin, in a manner to which the plaintiff had no right. Butcher v. Porter, 1 Salk. 94; S. C., Carth. 243; Gilb. on Replevin 127, 128. So the defendant may plead property in the plaintiff and J. S. in abatement of the replevin; and although it admits a right of deliverance in the plaintiff, yet it does not allow it under a writ in the name of the plaintiff alone; and if the defendant make conusance, he will, upon establishing the truth of his plea', be entitled to a return. Gilb. on Replevin 128. Now upon the principle of these authorities, and the reason of them, ras also that of the thing itself; the defendant may plead property in the plaintiff and himself, and, if [36]*36true, it must not only defeat the plaintiff in his writ, but entitle the defendant to a return of the property; because the latter having had the possession of it, coupled with an interest which makes his case the stronger, until improperly deprived thereof by the sheriff, under the plaintiff’s writ, which he had no right to use for such purpose, has a right to be placed in statu quo, that is, restored to the possession of the property as the joint owner thereof. But the case of the defendant here is still stronger, as is shown by his plea and the finding of the jury. From these it would appear that he was not only a joint owner of the property, but, in addition thereto, had a lien or claim upon it, for which it was to be withheld from-the plaintiff until the defendant should be satisfied in the manner agreed on between them for his claim.
Seeing, then, that each of the pleas is good and sufficient in law, and the jury having found generally in favour of the defendant upon them all, it follows that the plaintiff below has. no right to retain the property. But the arrest of the judgment by the court below went to protect the plaintiff in the possession of it, or at least to deprive the defendant of the judgment and process of the court to have a. return thereof, as well, as a recovery of the damages assessed for the detention of it. This, however, cannot be upon any principle recognised as known to the law. If the court below, from the evidence given on the trial of the cause, could not, consistently with the principles of law and justice, approve and confirm the verdict by rendering a judgment upon it, they ought, as has been already suggested, to have set it aside and granted a new trial. It was said on the argument, by the counsel for the defendant in error, that the verdict for the damages was bad: that the defendant in the court below was not entitled to claim, and could not recover, damages in such a case. It is true that he could not recover damages for the value of the property, on account of the plaintiff below having taken it under the writ of replevin; but if improperly taken under it, that is, without right on the part of the plaintiff to do so by such writ, the defendant had clearly a right to claim damages at the hands of the jury for the detention of the property, according to the case of Easton v. Worthington, 5 Serg. & Rawle 130; and this is all that the jury profess, by their verdict, to have allowed.
Where the defendant in replevin avows the taking of the property as a distress for rent in arrear, or any other sufficient cause of the like kind, or makes conusance, such avowry is considered in the nature of a declaration; Co. Lit. 303; 1 Saund. 347 b, n. 3; and the party making it, in the nature of a plaintiff; 1 Saund. 347 b, n. 3; aud for this reason,_as it would seem, the avowry or conusance, not being technically the plea of a defendant in the action, requires no averment in its co'nclusion, as every affirmative plea does; Bret’s Case, 1 Plowd. 342; Ibid. 163,and the cases there cited in the margin; Co. Lit. 303 a; 1 Saund. 347 e, n. 7. So when the [37]*37defendant, by avowing or making cognizance, becomes, as it were, a plaintiff in prosecuting his remedy by distress; and showing his right thereto, the plaintiff in the writ is regarded in the character of a defendant, and therefore entitled to the benefit of 4 Ann, c. 16, which allows a defendant, with the leave of the court, to plead two or more pleas; 1 Chilly’s Civil Pr. 560 (2d Loud, ed.); which he could not be permitted to do under this statute, if he were to be looked on as a plaintiff strictly, and his answer to the avowry or cognizance as a technical replication; because, the statute does not extend to replications, Ibid. 549. And hence it is, if it appear from the avowry of the defendant, according to his own showing, that he had no right to distrain or take the goods replevied, though upon an issue of fact joined thereon, the jury find a verdict in his favour; the court wifi, on motion of the plaintiff or his counsel, arrest the judgment, the same as they would, in any other case, arrest it at the instance of the defendant, when the verdict was in favour of the plaintiff, who had shown, by his declaration, that he had no cause of action. English v. Burnell, 2 Wils. 258. But here, even if the defendant below be considered in the nature of a plaintiff, on account of his claiming to have a return of the property awarded, and a judgment, quod recuperet, as to the damages assessed by the jury for the detention of it, which seems to be carrying the idea of his being a plaintiff or actor in the action quite as far as there is any colour for, no one of his pleas is bad, but each sufficient, as has been shown, to defeat the right of the plaintiff below to recover or to retain the possession, which he has obtained of the property. Neither can it loe objected now, after a trial has been had, supposing the fact to be so, that the pleas are inconsistent or contradictory, because the plaintiff below must be considered as having had the sanction of the court to plead them, by obtaining leave of it for that purpose, without which they could not have been pleaded according to the statute. If the plaintiff had conceived that the pleas were exceptionable, because repugnant or contradictory, he ought to have moved the court below before' he replied to them, or, at latest, before the trial, to have stricken out’ such of them as was necessary to remove the inconsistency. Nor am I inclined to think that it ought, after a trial, to avail the plaintiff below any thing, if one or more of the defendant’s pleas were bad, provided one of them appears to be good, and sufficient to sustain and justify the finding or verdict of the jury. Though the rule is settled, by authority, that a judgment can not be entered upon a general verdict in favour of the plaintiff, where his declaration contains two or more counts, one of which is bad; yet I am not aware that this rule, or the principle of it, has ever been extended and applied to the case of a general verdict in favour of a defendant, when he has put in several pleas, some of which only are bad. If there be one good plea among them, going to meet [38]*38the plaintiff’s whole cause of action, there seems to be no good reason why the defendant should not have judgment upon the verdict. Because, if evidence was given on the trial tending to prove the good plea, it ought to be presumed that the jury founded their verdict upon that evidence, and intended to find the issue joined on that plea in favour of the defendant; and that the unavailable pleas, and the evidence that was given in support of them, were left out of view by the jury in giving their verdict. This is the rule in criminal cases, even against defendants, where the most dear and valuable of all rights belonging to the citizen are involved; so that if a defendant be found guilty by the jury, generally, upon an indictment containing several counts, some of which are bad and others good, it shall be intended, if the evidence warranted it, that the jury found him guilty on the good counts. If, however, in either case, there should be no evidence, in the opinion of the court before whom the trial is had, to justify the jury in finding a verdict for the defendant upon the good plea, or a verdict of guilty against him on the good counts in the indictment, the court then, without hesitation, ought to set the verdict aside and grant a new trial; but it forms no ground for a court of error to interfere and grant relief. Hence the second plea on the part of the defendant, claiming the exclusive property in the goods as belonging to himself, being sufficient to sustain the verdict of the jury, we might presume, if the other pleas were insufficient to support the verdict and to account for the finding of the jury, that they intended their verdict should be applied to the issue joined on that plea.
Neither can it be objected, and more especially by the plaintiff, after a trial has been had and a verdict given for the defendant, that the property is not described with sufficient certainty in the declaration. It would seem to be contrary to a proper sense of moral as well as municipal justice, to permit a party to derive any advantage from his own omission or default. But the declaration, according to the rule as now settled in replevin, would seem to be good enough; if it be certain to a general intent, it is sufficient, especially after verdict. In Kempston v. Nelson, Bacon’s Abr. tit. Replevin H, MSS. case, where the declaration was for taking divers goods and chattels, to wit, a certain parcel of lint and a certain parcel of paper, the defendant avowed for rent; and after a verdict for the plaintiff, an exception was taken in arrest of judgment, that the declaration was uncertain in not specifying the quantities contained in the parcels; but Parker C. J., who delivered the opinion of the court, said that the declaration would undoubtedly have been ill on demurrer; but the defendant having avowed the taking of the goods in the declaration, the avowry had cured the defect, as thereby both parties were agreed what the goods were; and the defendant himself having prayed a return of them, there was no controversy between him and the plaintiff about them: and to oblige the plaintiff to a greater certainty would have been of no [39]*39service; for if he had demanded 500 reams of paper and proved only one, he must recover; for in torts, if the plaintiff prove any part of his case, it is svfficient; and as to the difficulty of delivering the goods upon a retorno habendo, in case the avowant prevailed, he said there was no weight in that objection; for the sheriff, when he came to make a return, might have the defendant’s assistance to show him which were the goods; and he was not obliged to execute the writ, unless somebody attended to point out the things he was to deliver; and it is a good return for him to make “ quod nullus venit ex parte defend’ ad ostend’ averia;” Rast. 570 b, Dalt. Sheriff, 274; and the case of Mone v. Clypsam, All. 33, Sty. 71, S. C., was fully considered and overruled, 2 Saund. 74 b, n. Here, in the case before us, the defendant pleaded property in the goods and chattels mentioned in the declaration, Avhich cured any defect that otherwise might have been taken advantage of, because it thereby appeared, as Chief Justice Parker says, that both parties were agreed as to what the goods were; and when the sheriff comes to make a return of the goods, he can have the defendant’s assistance in pointing them out: so that all the objections raised on the ground of uncertainty, are thus removed.
The arrest of the judgment by the court beloAV is reversed, and judgment entered on the verdict in favour of the plaintiff in error.