Smith vs. Snyder, 15 Wend. 324

By the Court, Savage, Ch. J. This case presents two points : 1. Whether the first writ of replevin justified the defendant below in keeping the wagon in question ? 2. Whether the defendant in replevin can prove property in himself, under the plea of the general issue ? Upon the first question, there cannot be much doubt. The writ was issued and the property taken; but the writ was never served as we are to understand. The •court from which that writ issued, and in which it was returned, ordered all proceedings set aside subsequent to the issuing thereof.

Whether the court decided correctly or not in ordering that rule is a question not now before us; the presumption is that the court did right. It rendered void all but the mere issuing the writ. There never was any service upon the defendant to set aside, but there was a taking of the wagon by virtue of the writ; that taking was set aside, and rendered null and void and of no effect.

The taking possession of the wagon, therefore, by the defendant was the same as if he had taken that possession without any writ; it was no protection to him; it did not give the sanction of law to his acts, and the court was correct in so deciding. The second point may be considered settled upon authority. Before the revised statutes, if the defendant in replevin claimed to have a return of the goods, he must have pleaded specially his defence. The plea of non cepit did not involve the merits. The question of taking was the only one in issue. 4 Wend. 217. 3 id. 671. 1 Mass. R. 152.

Under the statute, the plea of the general issue “ puts in issue not only the taking of such goods and chattels, but such taking in the place statec|} where the place is material.” 2 R. S. 528, § 39. By $ 44, the defendant may, with the general issue, give notice of any matters which, if properly pleaded, would be a bar to ^ actjorlj an(j whjch, if the goods have been replevied, would entitle him to a return thereof; and he may give such matters in evidence on the trial in the same manner, and with the like effect, as if the same had been pleaded.

Had the defendant in this case given notice with the general issue that he would prove property in himself in the wagon in question, he would have been entitled to give such evidence. His notice does not embrace any such defence, but relies simply upon the taking under the previous writ; that taking having been set aside as a legal proceeding, the case stood, as remarked above, precisely as if the wagon had been taken without any writ—the rule related back to the issuing of the writ, and rendered void every thing done as under color of law.

The court below correctly considered the case standing upon the same principle as if the officer to whom the writ was delivered had never done any thing under it. Judgment affirmed.