
    Arthur E. Campbell vs. H. O. Camp.
    October Term, 1896.
    Present: Ross, C. J., Rowell, Tyler, Munson and Thompson, JJ.
    
      General Issue in Replevin — No Demurrer to Notice.
    
    Not guilty is, by statute, the proper general issue in replevin.
    A notice filed with the general issue is not subject to demurrer. If insufficient, objection may be made to the evidence offered under it.
    Replevin. Plea, not guilty and notice of justification. Heard on general and special demurrer to the plea and notice, at the March Term, 1896, ■ Washington County, Start, J., presiding.
    Demurrer overruled. The plaintiff excepted.
    
      John W. Gordon for the plaintiff.
    (1) The notice is insufficient because it says that the defendant “took said goods, if at all” etc. which is neither an avowry nor an admission of the taking. It is the general issue, not a justification.
    (2) The notice is insufficient because it does not show a return of the warrant. Wright v. Marvin, 59 Yt. 437; Elhs v. Cleveland, 54 Yt. 437.
    (3) Under the general issue the defendant cannot have a return of the goods. I Chittv 537.
    (4) The defendant has the wrong general issue.
    
      Richard A. Hoar for the defendant.
    Y. S. 1471 makes “not guilty” the proper general issue in replevin. Plainfield v. Baichelder, 44 Yt. 9; Loop v. Williams, 47 Yt. 407.
    The notice is sufficient, as is held in the same cases.
   Rowell, J.

This is replevin for seventy bottles of beer, alleged to have been taken by the defendant as deputy sheriff, from the plaintiff’s store, on a warrant of search and seizure. Plea, not guilty, and notice of justification under said warrant. Both the plea and the notice are demurred to.

As to the demurrer to the plea, the statute provides that the general issue shall be joined on the plea of not guilty, and this court has held in cases just like this that such a plea is good. Plainfield v. Batchelder, 44 Vt. 9; Loop v. Williams, 47 Vt. 407.

As to the demurrer to the notice, it is sufficient to say that a notice is not the subject of demurrer. If insufficient, advantage must be taken of it by objecting to the testimony offered under it.

Judgment affirmed and cause remanded.  