delivered the opinion of the Court.
"William H. Calvert brought an action of replevin, in the cepit, against William M. Davis, in the Phillips Circuit Court, for a bay mare.
The defendant pleaded :
1. Won cepit.
2. Won Detinet.
3. Property in the defendant, traversing title in the plaintiff.
4. Property in a third person.
5. A special plea as follows: “Actio, non,-because he says, that the said bay mare, in the plaintiff’s declaration mentioned, was taken up by him, the said defendant, as an estray, and regularly posted as such, as required by the laws of said State of Arkansas, about three months previous to the service of the writ in this behalf upon him; and he held the said property as an estray, at the time the same was replevied out of his hands ; and that the said plaintiff did not prove property in said estray, and pay, or tender to the defendant, the necessary fees as required by law to iyutliorize this defendant to deliver the said bay mare up to him; ■without this, that the said bay mare was, or is the property of the said plaintiff; and this he is ready to verify, wherefore, &c.”
The plaintiff took issue to the first and second pleas, and filed replications to the 3d and 4th, to which defendant took issue.
To the 5th plea, the plaintiff demurred, on the grounds: 1st. “That the plea does not set up how said bay mare was taken up and posted as an estray, as prescribed by the statute.”
2. The plea is not responsive to the declaration.
3. The plea is, in other respects, insufficient and imperfect, &c.
The court sustained the demurrer. The parties then submitted issues to the other pleas to a jury, and the plaintiff obtained verdict and judgment for the mare.
The defendant brought error, and seeks to reverse the judgment, upon the ground alone, that- the court erred in sustaining the demurrer to his fifth plea.
Before the owner of an animal, posted as an estray, can maintain replevin therefor, against the person posting the animal, ho must apj>ear within the time prescribed, prove his claim to the property before a justice, and pay, or tender to the taker up, the costs of posting. Dig., ch. 65, secs. 21, 25, 26, 27, 28, 29; Phelan vs. Bonham, 4 Eng. Rep. 389; Garabrant vs. Vaughen, 2 B. Mon. 328.
The matter set up in the plea, was, therefore, a good defence to the action. "Was it pleaded in proper form, or with sufficient certainty ?
As a general rule, it is said to be sufficient for a plea in bar to bo certain to a common intent, while in a declaration, certainty to a certain intent in general, is required. Gould's Pl., ch. 3, sec. 53, p. 82. It is difficult to get a practical understanding of what is meant by the different degrees of certainty in pleading, as defined by Lord Coice, and followed by commentators on the subect. Mr. Gould, in treating of the certainty required in a declaration in describing the subject matter of the action, says: “No greater certainty is required than the subject will conveniently admit; or, in other words, that if the averments are so made, that the adverse party, the counsel, the jury, and the judges can fully wider - stand the subject matter, the declaration is sufficient.” Gould Plead., chap. 4, sec. 26, p. 182.
Thougli it seems, that pleas in bar admit of a less degree of certainty than declarations, yet, we think the plea in this case sets forth the subject matter of the defence relied upon, so that it may be fully understood by the adverse party, the counsel, the jury, and the court.
The counsel who interposed the demurrer, seemed to suppose that the defendant should set forth in his plea a compliance by him, in detail, with all the steps required by the statute to be taken in posting a stray animal, from the time it is taken up, until the proceedings are complete. But this would serve rather to complicate the plea, than to answer any useful purpose in pleading. The statute in relation to estrays, is a public and general law, and its provisions need not be recited in a plea based upon them. "We think the allegations, of the plea were sufficient to advise the plaintiff of the grounds and nature of the defence relied upon, so 'that he might prepare to meet it, and tendered matter not only responsive to the declaration, but susceptible of an issue.
Had the plaintiff replied to the plea, that the defendant did not take up the animal, sued for as an entray, and cause it regularly to be posted as such, as required by the laws of the State, &c., in manner and form as alleged in the plea, the defendant would have been required to prove upon a trial of this issue, a substantial compliance with the provisions of the statute on his part, in taking up and posting the animal. Harryman vs. Titus, 3 Mo. Rep. 302.
Or the plaintiff might have replied that he did prove property in the animal, and pay, or tender to the defendant, as the case might have been, the necessary fees as required by law, &c., &c., and thus have formed an issue upon negative allegations of the plea.
Or, upon leave of the court, he might have interposed two replications, one to tbe affirmative, and tbe other to tbe negative allegations of tbe plea.
It may be supposed that tbe defendant might have bad the benefit of tbe matter of defence set up in tbe plea, upon the trial of tbe other issues ; and that, therefore, tbe judgment should be affirmed. The action being in the cepit, the plea of non detinet was inappropriate ; and, upon motion, should have been stricken out. Dig., chap. 136, sec. 33, 34.
If it be conceded, that under the issue to the plea of non cepit, had it appeared upon the trial that the defendant did not take the animal wrongfully, but that it strayed from the owner, and he lawfully took it up as such, &c., the plaintiff would have failed: (Nelson vs. Merrian, 4 Pick. 249,) or if it be conceded, that under the issue to the plea of property in the defendant, if it had been proven upon the trial, that the defendant lawfully posted the animal, as an estray, and that the costs due him on that account had not been paid or tendered, and he thereby had a special property in the animal, the plaintiff would have failed in the action ; yet, it would not follow Jhat the judgment of the court, sustaining the demurrer to the special plea, should be affirmed.
Because: first, the defendant had the right to plead as many several matters as he might think necessary for his defence, (Dig., chap. 126, sec. 69; Ib. chap. 136, sec. 32); and secondly, even if the special plea interposed by him, amounted to no more than the general issue, or set up matter that might have been given in evidence under some other plea interposed, yet, the proper mode of raising the objection, was to apply to the court to compel him to elect upon which plea' he would rely, and strike out the other, and not to demur. Lincoln vs. Wilamouwicz, 2 Eng. Rep. 378; Lawson et al. vs. The State, 5 Eng. Rep. 28; Gould Plead., chap. 6, part 2, secs. 86, 87, 89.
The practice, perhaps, is to plead specially matter, of defence of the character setup in the'plea in question. Cromwell vs. Clay, 1 Dana 578; Garabrant vs. Vaughn, 2 B. Monroe 327; Phelan vs. Bonham, 4 Eng. Rep. 389. The plaintiff could have but little ground to complain, that it was specially pleaded, as lie was thereby advised of the defence relied on, and not subject to surprise, as he might be, if introduced under some more general plea.
Holding the plea to be substantially good, the court below erred in sustaining the demurrer thereto. The j udgment is therefore reversed, and the cause remanded, with instructions to overrule the demurrer, permit the plaintiff to respond to the plea, and to grant the defendant a new trial.
ITon. T. B. ITaNLy, J., not sitting in this case.