Amos v. Sinnott

Citations

• 5 Scam. 440

Syllabus

<p>Error to Clinton.</p> <p>1. .Replevin — manner of commencing. The mode of instituting a suit in replevin, under our statute, is, first, for the plaintiff to make oath, usually in the form of an affidavit of the nature of his complaint against the defendant; secondly, for the clerk to issue a writ of replevin, directed to the sheriff of the county, which is made up of the plaint and summons mentioned in the second section of the replevin act of 1S27, by setting out the substance of the affidavit, by way of plaint or complaint, in the commencement of the writ, and then by concluding with a summons to the defendant; and, thirdly, by filing the declaration. (a) </p> <p>2. Same — declaration, when filed. It is not cause for dismissing an action of re-plevin, because no declaration is filed at the first term of court. (b) </p> <p>3. Same — plea, non detinet. In replevin, under the plea of non detinet, the action is not sustained by proof on the part of the plaintiff, that the defendant was in possession of the property when the officer went to replevy it, without proving, at the same time, the right of the plaintiff to its immediate possession, (c) </p> <p>4. Same —plea, non cepit. . The plea of non cepit, in an action of replevin for a wrongful detention, presents an immaterial issue.</p> <p>5. SAME — plea, properly in defendant. The plea of property in the defendant, in an action of replevin, throws the burthen of proof upon the latter.</p> <p>6. Non-SUIT — practice. A plaintift may voluntary suffer a non-suit at any time before the jury retires ; but the court has no authority to instruct the jury, either to non-suit the plaintiff, or to find against him. as in case of a non-suit, (d) </p> <p>7. Practice — issues not proved. Where there is no evidence proving.or tending to prove the issues on the part of the plaintiff, the proper motion is to request the couit to instruct the jury, that it is their duty, according to law, in the absence of such testimony, to find a