Bonner v. Coleman , 3 B. Mon. 464 ( 1843 )

Judge Breck

delivered the opinion of the Court.

This is an action of replevin, and the only question, which wm deem deserving consideration, is, whether a verdict for the defendant, upon the plea of non cepit, will authorize a judgment for the restitution of the property.

At common law, no judgment for restitution could be rendered upon such finding, and there is no provision in our statutes relative to this action, which authorizes it, the finding on the plea being merely for the defendant. The principle is that the defendant must become actor and assert a right of property in himself, before he is entitled to a judgment for the restitution of it. The plea of non cepit admits the right of property to be in the plaintiff, and denies merely the taking.

We are inclined to doubt whether the Court was correct in the peremptory instructions to the jury, and therefore, will not disturb the verdict. But we are of opinion the Court erred in awarding to the defendant a restitution of the property.

Wherefore, the judgment is reversed, so far as it awards to the defendant restitution of the property replevied, and a writ of retorno habendo, and affirmed so far as it awards to the defendant his costs.

Fry <$• Page for appellant: Duncan Ripley for appellee.