JAN. TEEM, 1856. DAVIS V. CALVERT. *DAVIS [*85 V. CALVERT. Before the owner of an aninMl posted as au estray, can maintain replevin therefor, he must appear within the time prescribed, prove his claim to the property before a justice, and pay or tender to the person posting, the cost thereof. Phelen V. Bonham, 9 Ark. 389. A plea, to an action of replevin for an animal, that the de'endant took it up as an estray, and regularly posted it as such, as required by law, and that the plaintiff did not prove property in said estray, and pay or tender the necessary fees, as required by law, is sufficient, without setting forth a compliance in detail, with all the steps required hy the statute in posting a stray animal. A plea in bar is sufficiently certain, if it seto forth the subject matter of the defense relied upon, so that it may be fully understood by the adverse party, the couns, ..l, the jury, and the court. A plea setting up a defense under a public and general law, need not recite the provisions of the statute, if the allegations are sufficient to advise the plaintiff of the grounds and nature of the defense, and tender matter responsive to the declaration and susceptible of an issue. The plea of non delinet is inappropriate in am. action of replevin in the cepit; and, upou motionv should be stricken out. Where the defendant pleads the general issue;. and, also, interposes a epecial plea, amounting to no more than the general issue, or setting up matter that might be given in evidence under some other plea interposed, the proper mode of raising the objection to the pleading is not by demurrer,. but by application to the court to compel him to elect upon which plea he will rely. Writ of Error to the Circuit Court of Phil lip s county. ON. CHARLES W. ADAMS, H Circuit Judge.
DAVIS V. CALvERT. VoL. 17 Watkins & Gallagher, for the plaint-plaintiff obtained verdict and judg-iff. ment for the mare. 4 861 ENGLISII, C. J. William H. The defendant brought error, and Calvert brought an action 'of replevin, seeks to reverse the judgment, upon in the cepit, against William M. Davis, the ground alone, that the court erred in the Phillips circuit court, for a bay in sustaining the demurrer to his fifth mare. The defendant pleaded : plea. I. Non cepit. nefore the owner of an animal, posted 2. Non Detinet. as an estray, can maintain replevin 3. Property in the defendant, tra-therefor, against the person posting versing title in the plaintiff. the animal, be must appear within the 4. Property in a third person. time prescribed, prove his claim to the 5. A special plea as follows : "Actio property before a justice, and pay, or non, because he says, that the said bay tender to the taker up, the costs of mare, in the plaintiff's declaration posting. Dig., chap. 65, secs. 21, 25, mentioned, was taken up by him, the 26, 27, 28, 29; Phelan v. Bonham, 9 Ark. said defendant, as an estray, and regu-389 ; Garabrant v. Vaughen, 2 B. Mon. larly posted as such, as required by the 328. laws of the said State of Arkansas, The matter set up in the plea, was, about three months previous to the therefore, a good defense to the action. service of the writ in this behalf upon Was it pleaded in proper form, or with him ; and he held the said property as sufficient certainty ? an estray, at the time the same was As a general rule, it is said to be replevied out of his hands, and that suffieient for a plea in bar to be certain the same plaintiff did not prove prop-to a common intent, while in a declara-erty in said estray, and pay, or ten-tion, certainty to a certain intent in der to the defendant, the necessary general, is required. Gould's Pl., chap. fees . as required by law to author-3, sec. 53, p. 82. It is difficult to get a ize this defendant to deliver practical understanding of what is the said bay mare up to him ; meant by the different degrees of cer-87*] '''‘vithout this, that the said bay tainty in pleading, as defined by Lord mare was, or is the property of the said Coke, and followed by commentators plaintiff; and this he is ready to veri-on the subject. Mr. Gould, in treat-fy, wherefore, &c." ing of the certainty required in a decla-The plaintiff took issue to the first ration in describing the subject mat-and second pleas, and filed replications ter of the action, says : "No greater to the 3d and 4th, to which defendant certainty is required than the subject took is.sue. will conveniently admit ; or, in other To the 5th plea, the defendant de-words, that if the averments are so murred, on the ground : 1st. " That made, that the ad5 verse party, [488 the plea does not set up how said bay the counsel, the jury, and the judges mare was taken up and posted as au can fully understand the subject mat-estray, as prescribed by the statute." ter, the declaration is sufficient." 2. The plea is not responsive to the Gould Plead., chap. 4, sec. 26, p. 182. declaration. Though it seems, that the pleas in 3. The plea is, in other repects, in-bar admit of a less degree of certainty sufficient and imperfect, &c. than declarations, yet, we think the The court sustained the demurrer. plea in this case sets forth the subject The parties then submitted issues to matter of the defense relied upon, so the other pleas to the jury, and the that it may by fully understood by the
JAN. TERM, 1856. DAVIS V. CALVERT. adverse party, the counsel, the jury, ant might have had the benefit of the and the court. matter of defense set up in the plea, The counsel who interposed the de-upon the triallof the other issues; and murrer, seemed to suppose that the de-that, therefore, the judgment should fendant should set forth in his plea a be affirmed. The action being in the compliance by him, in detail, with all cepit, the plea of non detinet was inap-the steps required by the statute to be propriate; and, upon motion, should taken in posting a stray animal, from have been stricken out. Dig. ,chap. 136, the time it is taken up, until the pro-sec. 33, 34. ceedings are complete. But his would If it be conceded, that under the is-serve rather to complicate the plea, sue toIthe plea of non cepit, had it ap-than to answer any useful purpose in peared upon the trial that the defend-pleading. The statute in relation to ant did not take the animal wrong-estrays, is a public and general law, fully, but that it strayed from the and its provisions need not be recited owner, and he lawfully took it up as in a plea based upon them: We think such, &c., the plaintiff would have the allegations of the plea were suffi-failed (Nelson v. Merriam, 4 Pick. cient to advise the plaintiff of the 249): or if it be conceded, that under grounds and nature of the defense re-the issue to the plea of property in the lied upon, so that he might prepare to defendant, if it had been proven upon meet it, and tendered matter not only the trial, that the defendant lawfully responsive to the declaration, but sus-posted the animal, as an estray, and ceptible of an issue. that the costs due him on that account Had the plaintiff replied to the plea, had not been paid or tendered, and that the defendant did not take up the he thereby had a special property in animal, sued for as entry, and cause it the animal, the plaintiff would have regularly to be posted as such, as re-failed in the action ; yet, it would not quired by the laws of the State; &c., in follow that the judgment of the court, manner and form as alleged in the sustaining the demurrer to the special plea, the defendant would have been plea, should be affirmed. required to prove upon a trial of this Because: first, the defendant had the issue, a substantial compliance with right to plead as many several mat-the provisions of the statute on his ters as he might think necessary for part, in taking up and posting the ani-his defense (Dig., chap. 126, sec. 69; mal. Ilarrymanv. Titus, 3 Mo. Rep. Id. chap. 136, sec. 32 : and secondly, 302. even if the special plea interposed by Or the plaintiff might have replied him, amounted to no more than the that he did not prove property in the general issue, or set up matter that animal, and pay, or tender to the de-might have been given in evidence un-fendant, as the case might have been, der some other plea interposed, yet, the necessary fees as required by law, the proper mode of raising the objec-&c., &c., and thus have formed an tion, was to apply to the court to com-issue upon negative allegations of the pel him to elect upon which plea he plea. would rely, aud strike out the other, Or, upon leave of the court, and not to demur. Lincoln v. }Vila-he might have interposed two rep-mouwiez, 7 Ark. 378; Lawson et al. v. 80 5 rlications, one to the affirmative, The State, 10 Ark. 28; Gould Plead., and the other to the negative allega-chap. 6, part 2, secs. 86, 87, 89. tions of the plea. The practice, perhaps, is to plead It may be supposed that the defend-specially matter of defense of the char-
VOL. 17 acter set up in the plea in question. Cromwell v. Clay, 1 Dana 578; Gaya-brunt v. Vaughan, 2 B. Monroe 327 ; 9 0'1 *Phelan v. Bonham, 9 Ark. 389. The plaintiff could have but little ground to complain, that it was specially pleaded, as he was thereby advised of the defense relied on, and not subject to surprise, as he might be if introduced under some more general plea. Holding the plea to be substantially good, the court below erred in sustaining the demurrer thereto. The judgment is therefore reversed, and the cause remanded, with instructions to overrule the demurrer, permit the plaintiff to respond to the plea, and to grant the defendant a new trial. Hon. T. B. Hanly, J., not sitting in this case. Cited :-18-559 ; 19-634 ; 23-294 ; 37-476.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.