1 Johns. 380 | N.Y. Sup. Ct. | 1806
delivered the opinion of the court. The avowry in this case was clearly bad. It was necessary for the avowant to have set forth his title, and to allege the estate of which he was seized. The power of distress is called an extraordinary power, and for this reason the common law requirecHhe authority to be specifically shown. This old rule is still to be strictly inforced in cases not within the remedial revisions of certain statutes relative to pleadings in replevin. (Yelv. 148. 2 Wils. 261. 2 Bos.& Pul. 359. 2 Saund. 283. 284 c. n. 3. 310. 314. n. 13.) With respect to this point we have no relaxation of the common law rule, as the provision in the statute of 11 G. 2. c. 19. sec. 22. has never been adopted.
But the plea of property ip a stranger is a good plea either in abatement or in bar, and entitles the party to a return without avowry, for the possession was illegally taken from him by the replevin. (2 Lev. 92. 1 Salk. 94.) The reply to this plea was insufficient and bad. The first reply was, that the defendant entered the house in the night time and took the goods. This fact was altogether immaterial and irrelevant to the question of property which the plea ought to have confessed and avoided, or traversed and denied. The second replication to this plea is also insufficient. It states that the
Judgment affirmed.