
    *Judd against Fox and Horton.
    UTICA,
    August, 1828.
    A plea to an avowry or cognizance need not allege any place of taking.
    It is enough that it refer to the property mentioned in the declaration and avowry or cognizance.
    The declaration in replevin stated the chattels to be the property of the plaintiff, and to have been taken from the building of a third person. Avowry and cognizance. Plea to the avowry and cognizance that the property and possession or the chattels were in the plaintiff. Held, no departure from the declaration ; for the plea did no more than render certain what was not in terms al^g®d. ^y the but which was perfectly consistent with it.
    Replevin lies for goods taken in execution; they not being, at the time, in possession of the debtor in the execution. Otherwise, if in his possession. 
    
    The proceedings, sentence, execution, and levy and sale under the sentence of a regimental court martial pleaded and set forth in an avowry and cognizance, of goods taken in virtue of the execution.
    Replevin. Demurrer to the plaintiff’s- pleas m bar to the defendant’s avowry and cognizance. The declaration contained 8 .counts; all alleging the taking by the defendants of 200 bushels of corn, the property of the plaintiff, value 100 dollars, on the first of November, 1825. The two first counts alleged the taking at a certain corn house belonging to Rufus Henry, situated on the lands owned or possessed by Henry, in the town of Lebanon, in the county of Madison. The other counts describes the place of taking as a certain common or highway, leading from one place to another, particularizing them in the town of Lebanon.
    The defendants pleaded 1. Non ceperunt; 2. Property in the defendant, Fox, and denied property in the plaintiff ; 3. They made' avowry and cognizance as follows
    “ And the said Horatio Fox and Wiliam Horton, for further plea, &c. come &c.; and the said Horatio, in his own right, well avows, and the said William, as bailiff of the said Horatic, well acknowledges the taking of the said goods and chattels in the said declaration mentioned, in the said places in which, &c. and justly &c.; because they say, that before the said time when, &c. to wit, on the 11th day of October, A. D. 1825, at a regimental court martial, duly constituted and appointed, in pursuance of the act entitled an act to organize the militia, passed April 23, 1823, and held at the house of Eben Blakeman in the town of Eaton, Madison, county, on the said 11th day of October, 1825, for the trial of all delinquencies and deficiencies in the 8th regiment of riflemen of the state of New York, of which court martial Major Isaac Coe, junior, was president, and captain Charles H. Williams and captain Royal Richardson, all of said regiment, were *members, one Rufus Henry, of Lebanon, in the aforesaid county, who belonged to, captain Brown’s company of riflemen in the said regiment of riflemen, by the judgment, consideration and sentence of said court, was duly convicted, according to law, of delinquencies in duty, and deficiencies in equip ments as a member of said company; and therefore, by the said court martial, held by the aforesaid officers, duly fined the sum of two dollars, according to the directions and provisions of the aforesaid act; and for the collection of which fine, a warrant or execution was duly issued under the hand and seal of the said president of the said court martial, directed to any constable or marshal of the-county of Madison, commanding him to levy and collect said fine of the goods and chattels of the said Rufus Henry, with his costs of collecting the same according to law; which warrant of execution was, on the day of. the date thereof, delivered to one Ira Bartlett, then a constable of the town of Eaton, in the county of Madison; by virtue of which said warrant or execution, the said Ira Bartlett, within the time by the said warrant or execution, and the law, limited for making a" levy, did levy upon the com in the said declaration mentioned, then being the property and in possession of the said Rufus.Henry, and according to law, the said Ira Bartlett, by virtue of the said warrant or execution, and according to. the provisions of the law in that case made, did sell the said eorn at public vendue, to the said Horatio Fox; and then and there delivered the same to him. And the said defendants aver that the property and possession of the said corn in the said declaration mentioned, at the said time when, dec. were in the said Rufus Henry, to wit, at the town and in the county aforesaid ; without this, that the property of the said corn, or any part thereof, at the said time when, &c. was in the said Heman Judd, as by the said declaration is above supposed ; and this they are ready tó verify ; wherefore they pray judgment, and a return of the said corn to be adjudged to them, &c.*
    The plaintiff took issue on the second plea; and to the avowry and cognizance, after protestando as to all the alleged proceedings of the court martial, and the levy and sale, for plea, said that the property and possession of the corn, at the *time of taking, levy and sale, &c. were not in Henry, but in the plaintiff. There was also a second plea to the avowry and cognizance, substantially like the first.
    Demurrer, assigning for cause, 1. That the pleas w'ere uncertain as to the place of taking; 2. That they departed from the declaration, which alleged property only in the corn—‘the pleas alleging both property and possession; and 3. That neither of the pleas answered the whole avowry and cognizance, though in their commencement they professed to do so.
    Joinder in demurrer.
    A summary of the pleadings is given in the opinion of court.
    
      G. C. Bronson, in support of the demurrer.
    
      P. Gridley, contra.
    
      
       See Dunham v. Wynkoff, 3 Wen. 280. Hall v. Tuttle, 2 id. 475, 478. Dig. N. Y. Rep. by Hogan, tit. Replevin. Replevin is by the Revised Statutes substituted for detinue, and trover. See Wright v. Bennett, 3 Barb. S. C. Rep. 151, 152.
    
   Curia, per Sutherland, J.

This is a demurrer to the plaintiff’s pleas, in bar to the defendants’ avowry and cognizance in replevin. The declaration contains eight counts, all of which allege the taking by the defendants on the 1st of November, 1825, of two hundred bushels of corn, the property of the plaintiff, of the value of 100 dollars.

The counts are all substantially alike, except as to the place of taking. The two first counts allege the place in which the corn was taken, to have 'been a Certain corn house, belonging to one Rufus Henry, situated on lands owned or possessed by said Henry, in the town of Lebanon, in the county of Madison. The other counts describe the place of taking as a certain common or highway, leading from one place to another in the town, particularly set forth.

The defendants plead, first, non ceperunt; secondly, property in the goods taken, in the defendant Fox, and deny that they were the property of the plaintiff; thirdly, they avow and make cognizance of the taking; Fox in his own right and Horton as his bailiff, &c. under a judgment and execution or warrant, of a certain court martial, (whose proceedings are particularly set forth,) against one Rufus Henry; and allege the levy of the execution on the corn in question, and its sale at public auction to the defendant Fox, *to whom the corn was then delivered by the officer; and they aver that the property and possession of the said corn, at the time when, <fc. were in the said Henry, <j-c. ; without this, that the property of the said corn, or any part thereof, at the time when, &c. was in the plaintiff; and conclude with a verification. The plaintiff takes issue upon the second plea; and to the avowry and cognizance, after a protestando embracing all the alleged proceedings of the court martial, and the levy and sale under them, for plea saith, that the property and possession of said corn, mentioned in the declaration, at the time of the taking thereof, and at the time of the alleged levy and sale, ,&c. were not in the said Rufus Henry, Sf-c.; but the plaintiff expressly avers that the property and possession thereof,"at the time above mentioned, were in the said plaintiff; and concludes to the country. There is also a second plea, which is substantially like the first. To these pleas the defendants demur specially, and assign for causes of demurrer, 1. That they are uncertain as to the place of taking; 2. They depart from the declaration; the declaration alleging only property in the corn to have been in the plaintiff; and the pleas alleging both property and possession, <j-c.; 3. That neither of the pleas answer the whole avowry and cognizance, although in their commencement they profess to do so.

There seems to me to be no force in the objections taken to the pleas. The pleas do not expressly allege any place of taking; nor was it necessary. The avowry and cognizance justify the taking of the corn mentioned in the declaration, under a warrant against Rufus Henry; and aver that it was then in his possession. Two of the counts in the declaration charge the taking to have been from a corn house on the farm of Henry; and the pleas demurred to allege that the corn mentioned in the declaration was not the property, nor in the possession of Henry. It appears, with sufficient certainty, that the pleas allude to the corn mentioned in the avowry. (1 Chit. Pl. 547.) The two first counts of the declaration state the place of taking, with all the particularity that was practicable or requisite.

The allegation of departure from the declaration is also unfounded. There is nothing in the declaration which “negatives the idea that the com was in the possession of the plaintiff when taken. The property of the corn is expressly averred to have been in him; and it is alleged to have been in a corn-house belonging to Rufus Henry, on land owned or possessed by him. Henry owned the land and the corn house ; but if the plaintiff had the key of the com house, or in any other manner had the exclusive control of the corn, the possession of the com was his. There is nothing in the declaration inconsistent with such fact. The pleas render certain, by an express averment, that which was not in terms alleged in the declaration; but which is perfectly consistent with what is there alleged. This is not a departure. The pleas substantially answer the. whole avowry and cognizance. ,

But it is said replevin will not lie in this case. If the goods were taken not out of the possession of Henry, the defendant in the execution, under which the taking is justified, but from the possession of the present plaintiff, then the cases of Thompson v. Button, (14 John. 84,) and of Gardner v. Campbell, (15 John. 401,) show that replevin wül lie. The pleas expressly aver the possession to have been in the plaintiff, which is admitted by the demurrer, the objection as to the departure being unfounded.

The plaintiff is entitled to judgment on the demurrer, with leave to the defendants to withdraw the demurrer, and plead on payment of costs.

Rule accordingly.  