
    Reina E. Holcomb vs. Charles A. Brickley.
    B. brought replevin against H., who pleaded non cepit, whereupon B. submitted to judgment.
    H. then brought trover against B. for the same property. B. pleaded the former judgment in bar, and H. demurred.
    
      Held, that the plea was bad. To make the admission of title implied in the plea of non cepit an estoppel against H., judgment in the replevin action should have been rendered against him and not in his favor.
    Trover. On demurrer to plea.
    
      January 27, 1879.
   Dtjreee, C. J.

Tbe plaintiff sues tbe defendant in trover for tbe conversion of a piano. Tbe defendant pleads in bar a judgment for costs recovered against himself on submission in an action of replevin for tbe piano, wherein tbe parties were reversed and tbe plea was non cepit only. Tbe plaintiff demurs'. Tbe defendant contends that inasmuch as be alleged himself to be tbe owner of the piano in tbe action of replevin and tbe plaintiff did not traverse tbe allegation, but impliedly admitted it by pleading simply non cepit, be cannot now claim to be tbe owner himself, but is estopped by tbe former judgment. We think the argument is invalid, for the reason that tbe allegation so impliedly admitted did not pass into judgment, tbe judgment having been rendered for and not against tbe plaintiff. To make tbe admission conclusive tbe judgment should have been rendered against him. Boileau v. Rutlin, 2 Exch. Rep. 665, 681; Sweet v. Tuttle, 14 N. Y. 465; Carter v. James, 13 M. & W. 137; Hutt v. Morrell, 3 Exch. Rep. 240 ; Buck v. Rhodes, 11 Iowa, 348. Demurrer sustained.

Perce Sallett, for plaintiff.

Bosworth Champlain, for defendant.  