12 Del. 574 | Del. | 1887
delivered the opinion of the Court:
The main question presented in this case is whether an action of replevin for a horse wrongfully taken and detained by the defendant below from the plaintiff below, on a demand made by him for the possession of it, is a local or a transitory action in the Courts of this State ? At common law in England it was ruled as early as the reign of Queen Elizabeth, at least, that the action of replevin is a local action, and that it is necessary to allege in the declaration in it the place of taking, as well as the vill or parish^ otherwise the defendant may demur; but the omission is cured by pleading over or after verdict. The place, and vill or parish are material and traversable. 1 Saund., 347, n. (1.) by William Hob., 16; Reade v. Hawke, Cro. Eliz., 896; Ward v. Lavile, Moor., 678, Ward v. Lakin, 1 Brownl., 176; Read v. How, 1 Sid., 9, 10; Weston v. Carter, Carth., 186; Traverton v. Hicks. Where the defendant took the goods in another place than is mentioned in the declaration, he may plead non cepit, and give that fact in evidence, and non-suit the plaintiff. 1 Str., 507, Johnson v. Wollyer. The report of the case is brief. It was tried at Guildhall before Pratt, C. J., in the 8th year of the reign of George the First. Replevin in London, defendant appears upon an elongata, plaintiff declares for taking guns in quodam loco vocal’ the Minories in London-, defendant pleaded non cepit modo et forma. At the trial' the plaintiff proved the taking at Rotherhithe in Surrey; upon which it was objected that the plaintiff had not proved his issue, for the place is material, and therefore part of the issue under the modo et forma. The counsel for the plaintiff admitted that it was traversable; but insisted that by not traversing it particularly, the place
In the same note Williams also says: The plea of cepit in alio loco is to be considered as a plea in bar and not in abatement ; and it is upon this authority and the cases cited by him that Mr. Greenleaf in his American work on evidence lays down the rule of the common law on this question in the action of replevin in the following terms: “The general issue in this action is non cepit, which admits the plaintiff’s title, and under which it is incumbent on the plaintiff to prove, that the defendant had the goods, in the place mentioned in the declaration; for the action being local, the place is material and traversable. Proof of the original taking in that place is not necessary, for the wrongful taking is continued, in every place in which the goods are afterwards detained. But under this issue the defendant cannot have a return of the goods; if found for him, it merely protects him from-damages. If he would defend on the ground that he never had the goods in the place mentioned, he should plead cepit in alio loco which is a good plea in bar of the action. This plea does not admit the taking as laid in the declaration; and therefore, the plaintiff must prove such taking or fail to recover. 2 Greenl. Ev. Sec. 562. And this so far as the venue of the county, at least, is concerned, we have always understood and considered to be the rule in the courts of this State in all actions of replevin for the wrongful taking or detention of personal property, and not merely when the action is for distress for rent, or for cattle damage feasant; as it has long been, and still is an action of more frequent occurrence in this State for the wrongful taking or detention of goods and chattels with out such a claim, than with such a claim on the part of the defendant, and has as long existed here without any distinction being recognized between them in respect to the application of this rule, either by statute or the decision of our Courts, until this case occurred in the Court below; for we do not think
As it appears from the record that the Court below declined to sustain the motion for a non-suit on the alleged ground that the plaintiff had failed to prove the venue of the action in Kent