
    The People, on the relation of P. Tower, vs. Niagara C. P.
    Where judgment is rendered against a plaintiff in replevin, and there is no other plea than non cepita the defendant is not entitled to judgment pro retorno habendo.
    Motion for a mandamus. The relator was the defendant in an action of replevin, and put in plea of non cepit only. On the trial of the cause, the plaintiff was nonsuited, and the defendant entered a judgment of retorno habendo; which on motion, the Niagara common pleas struck from the record. A mandamus was now asked for to restore that judgment.
    
      P. Cooke, for relator.
    
      W. Hotchkiss, contra.
   By the Court,

Savage, Ch. J.

It is said, in behalf of the relator, that a plea of non cepit in replevin is like the general issue in other actions; it may be so in some respects, but if found for the defendant, if the jury say that he did not take the goods, how can there be a judgment pro retorno habendo ? Non cepit is a plea in bar, not involving the merits of the action ; and if a defendant claims a return of the goods, he must add an avowry or cognizance inducing a return, or he is not entitled to judgment for a return. (1 Chitty, 490. 1 Saund. 374, n. 1. 1 Strange, 507.) The mandamus is denied.  