in arrest of judgment, it will be presumed that the husband and wife were jointly possessed of the goods before marriage, and that the goods were taken before marriage; in which case the husband and wife might join (n). Executors may maintain replevin for the goods of the testator taken in his lifetime (o). Parties who have a joint interest in the distress may join in the replevin (p), but where the interest in the goods taken is several (q), there ought to be several replevins.

VII. Of the Declaration.

Venue.-THE Venue must be laid in the county in which the distress was taken. By R. G. H. T. 4 Will. IV. the name of a county shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff, and no venue shall be stated in the body of the declaration, or in any subsequent pleading. Provided, that, in cases where local description is now required, such local description shall be given. See further, on this point, stat. 3 & 4 Will. IV. c. 42, s. 22, ante, p. 517.

Locus in quo.-The place in which the distress was taken, technically termed the locus in quo, as well as the vill or parish, must be named in the declaration; because the right of caption may turn on the place, and the freehold may come in question (r). If the locus in quo be not named, the defendant may take advantage of the omission by special demurrer (s); but if he plead over, the defect is cured (t). This obligation on the defendant to name the locus in quo, has, from the supposed difficulty of ascertaining it in all cases, been frequently considered as a great hardship. It must be admitted, that if the law required the plaintiff to name the place where the distress was first taken, such a rule might deserve censure; but the law does not require such strictness; it being sufficient for the plaintiff to name that place in which he finds the defendant in possession of the distress (u); for the law considers the distress as wrongfully taken in every place in which the defendant may have it in his custody (13). Hence where the plaintiff declared

(n) Bern et Ux. v. Mattaire, Ca. Temp. Hardw. 119.

(0) Bro. Repl. pl. 59.

(p) 3 Hen. IV.16, a.; 1 Inst. 145, b. (g) Bro. Abr. Repl. pl. 12.

(r) 2 Hen. VI. 14, a.

Ward v. Lavile, Cro. Eliz. 896; Moor. 678, S. C., under the name of

Ward v. Lakin. See also Read and Hawke's case, the arguments in which are reported in Godb. 186, and the judgment of the court in Hob. 16, and 1 Brownl. 176. (t) Bullythorpe v. Turner, Willes, 476; and per Bridgman, C. J., 1 Sidf. 10.

(u) Per Chambre, J., 2 Bos. & Pul. 481.

(13) If the distress be taken in one county, and carried into another, the plaintiff may have replevin in either county, because it is a caption in

of a taking in A. (x), and the defendant pleaded non cepit modo et formá, the plaintiff having proved that he found the cattle in the possession of the defendant in A., it was adjudged sufficient, although the defendant proved, that he first took them in B., and was only driving them through A. to the pound (14). If the replevin be brought in an inferior court, the locus in quo must be alleged to be within the jurisdiction of the court (y). Where the close has not any name, it should be described by abuttals, or as in the occupation of (2) I. S. With respect to the description of the goods taken (a), it is stated in some of the books as a rule, that the goods must be described in the declaration with such certainty, that the sheriff may make a re-deliverance of them. The following cases contain all the learning on this subject :-Replevin for taking bona et catalla sua (b), viz. quandam parcell' lintei et quandam parcell' papyri ipsius querentis; the defendant avowed the taking as a distress for rent arrear. Verdict for the plaintiff, with entire damages. It was objected, in arrest of judgment, that "quandam parcell' papyri et lintei" was too general and uncertain a description; and although it might be well enough in trover and trespass, yet it was ill in replevin; because it was not a sufficient direction to the jury in assessing the damages, nor to the sheriff in re-delivering the goods: but Parker, C. J., observed, that although the declaration would have been ill on demurrer, yet the pleadings had supplied the defect; because the defendant having avowed the taking, he had thereby admitted that he knew what the goods were, and, consequently, both parties agreeing on this point, the only question was, who should have them. He added, that it would not be of any advantage to the defendant to have the goods particularized; because, if the plaintiff should demand 500 reams of paper, and prove that the defendant had wrongfully taken one only, yet he would be entitled to

Walton v. Kersop, 2 Wils. 354.

(y) Quarles v. Searle, Cro. Jac. 95. (z) Potten v. Bradley, 2 Moo. & P. 78.

(a) See Bull. N. P. p. 53.

(b) Kempster v. Nelson, Pasch. 13 Ann., 4 Bac. Abr. 387, cited and recognized in Bern v. Mattaire, Ca. Temp. Hardw. 121.

every county into which the distress is taken by the defendant. F. N. B. 69; 1 Doct. Pla. 315. See also Bro. Repl. pl. 63.

(14) If the defendant never had the goods in the place named in the declaration, non cepit modo et formá seems a proper plea, where the defendant does not seek a return. The plaintiff declared for taking guns in quodam loco vocat. the Minories; the defendant pleaded non cepit modo et formd. At the trial, the plaintiff proved the taking at a place in Surrey; upon which it was objected, that he had failed in proving his issue: to which Pratt, C. J., assented, observing, that where the defendant does not insist on a return, he may plead non cepit modo et formá, and prove the taking to be at another place. The plaintiff was nonsuited. Johnson v. Wollyer, Str. 507.

recover, agreeably to the rule, that in actions of tort it is sufficient for the plaintiff to prove part only of his declaration; and as to the necessity of an exact description of the goods on account of the re-delivery by the sheriff upon the retorn' habend, he observed, that the sheriff might require the defendant to show him the goods (15), and that it was a good return for the sheriff to make, "that no person came on the part of the defendant to show him the goods," and that such a return might be found in Rastall's Entries, and Dalton's Sheriff, c. 73. So where in replevin for taking fourteen skimmers and ladles (c), and three pots and covers, an exception was taken, after verdict, in arrest of judgment, to the declaration, for uncertainty in the description, in not expressing how many of each sort were taken; the court, adopting the reasons of Parker, C. J., in the preceding case, were of opinion, that the declaration was sufficient, and gave judgment for the plaintiff. But a declaration in replevin for taking "divers goods and chattels," was holden insufficient (d).

VIII. Of the Pleadings:

1. Of Pleas in Abatement, p. 1201; and herein of the Plea of Cepit in alio Loco, p. 1201.

2. General Issue, p. 1202.

3. Of the Avowry and Cognizance :

1. General Rules, &c. relating to the Avowry, and herein

of the New Rules, p. 1203.

2. Of the Avowry for Damage feasant, p. 1204; Pleas in Bar, p. 1205; Escape through Defect of Fences, p. 1205; Right of Common, p. 1206; Tender of Amends, p. 1207.

3. Of the Avowry for Rent Arrear, p. 1208; Pleas in Bar, p. 1210; Eviction, p. 1210; Non Dimisit, Non Tenuit, p. 1210; Riens in Arrear, p. 1211; Tender of Arrears, p. 1212.

4. Property, p. 1212.

(c) Bern v. Mattaire, Ca. Temp. Hardw.

124.

(d) Pope v. Tillman, 1 Moore, (C. P.) 386; 7 Taunt. 642, S. C.

(15) This argument has frequently been urged, when exceptions_in arrest of judgment have been made in actions of ejectment, for uncertainty of description in the declaration. See Portman v. Morgan, Cro. Eliz. 465.

5. Statutes :

1. Of Limitations, p. 1213.

2. Of Set-off, p. 1213.

1. Of Pleas in Abatement, and herein of the Plea of Cepit in alio Loco.

THERE is a difference between pleas in abatement in replevin, and in other actions, arising from the peculiar nature of the proceedings in replevin. In other actions, as actions of assumpsit, debt, or trespass, the plaintiff is not put in possession of anything until after judgment and execution thereon: as soon, therefore, as the writ or count is quashed, by a judgment for the defendant, on a plea in abatement, the defendant is thereby restored to the same situation in which he was before the action was brought but in replevin the mere quashing the writ or count does not afford the defendant complete redress, the plaintiff being in possession of the defendant's goods by previous delivery from the sheriff. To remedy this inconvenience, and to entitle himself to a return of the distress, the defendant must, to a plea of abatement in replevin, subjoin a suggestion in the nature of an avowry or cognizance. As this suggestion, however, is merely for the purpose of a return, the matter of it is not traversable (e). To the plea of cepit in alio loco (f), the defendant must add a suggestion of this kind, if he seeks a return.

Of the Plea of Cepit in alio Loco.

The defendant pleaded cepit in alio loco (g), and prayed judgment of the court, and that the count be quashed. On demurrer, the question was, whether the plea ought not to have prayed judgment of the writ; but it was insisted, that the place being mentioned in the count only, and not in the writ, the exception was properly taken to the count where the fault was. The court gave judgment for the plaintiff, being of opinion that the conclusion was good. But though this plea properly concludes with a prayer of judgment of the count or declaration, yet in a case (h) where to replevin for taking the plaintiff's goods, at the parish of St. Maryle-Bow, in the ward of Cheap, in London, the defendant in his plea prayed judgment of the declaration, because he took the goods in the parish of St. Martin, Ludgate Without, in the ward of Farringdon Without, in London, in a certain dwelling-house there, called the White Swan, without this, that he took them at the parish of

(e) Foot's case, Salk. 93; Willes, 475. II., MSS.
(f) Bro. Repl. 45; Anon., Salk. 94.
(g) Dockett v. Booth, B. R., E. 1 Geo.

(h) Bullythorpe v. Turner, Willes, 475.

St. Mary-le-Bow, in the ward of Cheap, and this he is ready to verify; wherefore he prays judgment of the declaration, and added a suggestion in the nature of an avowry for a return; it was holden, that the plea of the defendant was a plea in bar, and not a plea in abatement, for the following reasons:-1st, because the place in replevin is of the essence of the action, otherwise the defendant in replevin could not demur for want of a certain place in the declaration; 2ndly, because in a plea in abatement, an objection cannot be made for any defect in the declaration: in support of this reason, Hastrop v. Hastings, Salk. 212, was cited; 3rdly, because, upon inquiring of the officers in the Court of Common Pleas and in the King's Bench, it was not found that an affidavit had ever been made of the truth of this plea, as is required in pleas in abatement by stat. 4 & 5 Ann. c. 16; nor were defendants obliged to put in such pleas within the first four days of the term, as pleas in abatement must be by the course of the court; 4thly, because it appeared by the manner of pleading these pleas and the judgment given upon them, that they had always been considered as pleas in bar (i) ; lastly, because whoever pleads a plea in abatement must show that the plaintiff can have a better writ, whereas he cannot have a better writ in the present case; for it is in the usual form, as appears by the register, fo. 81, and Glanville, 1. 12, c. 12.

2. The General Issue.

The general issue in replevin is "non cepit," by which the property is admitted to be in the plaintiff, and the caption only put in issue. If the plaintiff take husband after suing out the writ, and before the declaration, the defendant cannot give the coverture in evidence under the general issue, but must plead it in abatement (k).

3. Of the Avowry and Cognizance :

1. General Rules, &c. relating to the Avowry, and herein of the New Rules, p. 1203.

2. Of the Arowry for Damage feasant, p. 1204; Pleas in Bar, p. 1205; Escape through Defect of Fences, p. 1205; Right of Common, p. 1206; Tender of Amends, p. 1207.

3. Of the Avowry for Rent Arrear, p. 1208; Pleas in Bar, p. 1210; Eviction, p. 1210; Non Dimisit, Non Tenuit, p. 1210; Riens in Arrear, p. 1211; Tender of Arrears, p. 1212.

(i) 1 Rast. Entr. 555, pl. 4, 5; 556, pl. 7; Thomps. Ent. 274, pl. 11; Clift's Entr. 644.

(k) Hollis v. Freer, 2 Bingh. N. C. 719, recognizing Morgan v. Painter, 6 T. R. 265.