The declaration contained but one count, which was for taking sundry goods of plff., to wit: beds and furniture; table; chest; hogs; sheep; cow; colt and one-third of four and a half stacks of fodder.
The plff. had a verdict for $91 50, the value of the property claimed; whereupon, Frame moved in arrest of judgment. Frame for deft. This is an action of replevin. The plea is non cepit. The property claimed is (inter alia,) one-third of four and a half stacks of fodder. Replevin will not lie for the part of an undivided chattel. This action is for the taking a chattel; for a wrong to the possession. It goes for a restoration of the chattel in specie; to recover the lost possession. It follows from the nature of the remedy that it cannot lie for an undivided part of a chattel, for specific possession cannot be had of such a share; nor can any delivery of it be made. The sheriff is commanded to deliver possession of the thing; he cannot divide it, for his functions are ministerial merely, and not judicial; neither can he deliver the whole, for that would be a wrong to another. No judgment therefore can be rendered on this verdict.
Layton for plff. The deft. should have demurred if this objection be good. But it is not good. He has pleaded property, as well as non cepit. By this plea the parties agree what property is intended. We do not go for a return, but for damages on account of the taking and detention. Detinue is the only action wherein the specific chattel can be recovered. 2 Saund; 1 Chitty 162. After verdict judgment shall not be arrested for error in the form of action. 8 D. L. 48.
Frams in reply. We do not object to the uncertainty of the description of the property, but that the action is brought for a species of property that cannot be recovered in this form of action.
Cur. adv. vult.
The Court at the April term following refused to arrest the judgment. Judgment for plff.