McPherson & Crane v. Melhinch , 20 Wend. 671 ( 1839 )

By the Court, Bronson, J.

In replevin, the plaintiff can only have one replication to a plea in bar" by the defendant, but to an •avowry or cognizance he may plead as many several matters as he shall deem necessary for his defence. Calvin v. La Farge, 6 Wendell, 505 . 2 R. S. 529, & 45. In the pleadings in question. the defendant, as the bailiff of Wetmore, justifies the taking of the goods as a distress for rent; but instead of pursuing the usual form of a cognizance, he has, in the introductory clause,.followed the usual form of a plea in bar, and by this departure from the precedents seeks to deprive the plaintiffs of more than one answer to each justification. The experiment cannot succeed. The defendant may plead several matters in bar of the action, as non cep it, property in himself or a stranger, cepit in alio loco, or a release ; but when he justifies the taking as a distress, and seeks a return, the proper form of pleading is an avowry, if the taking was in his own right, or a cognizance, if the taking was in right of another. The avowry or cognizance is in the nature of a declaration, and the plaintiff, like the defendant in other personal actions, may have several pleas in bar. Whether these justifications would have been set aside on motion, or whether the plaintiffs could safely, have demurred to them for want of form, it is not very material to inquire. The defendant committed the first fault, and he has little reason to complain that the plaintiffs treated and answered his pleadings as though they had been in the usual and proper form. The plaintiffs have, however, made a mistake in referring to the different cognizances to the second count. Instead of calling them respectively the 1st, 2d, and 3d cognizance to the second count, they are mentioned as the 4th, 5th, and (|th cognizances to the second count, when there are but three to each count. The best mode of setting the parties right, will be to allow the defendant to plead anew, and when his pleadings are put in proper form, the plaintiffs may take the usual time to answer,

Ordered accordingly.