butcher versus porter hill W m b r rot salk plea of property of good in a  stranger well plead in bar and not in abatement show SC I Danv p salk vent cro  roll Rep post Writ of error upon a judgement in replevin in Windsor court  where the defendant have plead in bar that the property of the good take be in  a stranger and not in the plaintiff to this plea there be a demurrer suppose  it ought to have be plead in abatement and not in bar and the judgement be  there give that the plea be good and now the plaintiff in error object that  the judgement give in Windsor court be informal and nought it be quod to  express grief nil to take in hand per narrative svan instead of complaint svan  exception be that the judgement be partial and defective for it be only that  to express grief sit in pity when it ought to be quod to express grief pledge  Himself de to follow to be in pity exception that this plea of property in a  stranger be a plea in abatement and not in bar or at least Carthew if good in  bar the defendant shall have make a avowry pro return habend which he have not  do and for this the case in the margin footnote be cite exception it appear  upon the record that the plaint be levy before the take the good and therefore  the judgement ought to have be against the plaintiff because complaint  insufficien in lege and not because placitum sufficient c say per curian as to  the first and last exception they be good and the judgement for the reason  above be erroneous and therefore the court will have reverse it but that such  reversal will be no advantage to the plaintiff because upon the reversal of a  erroneous judgement this court must give such a proper judgement as they ought  to have give below which be that the plaint shall abate and that the defendant  have a return of the good and this because it appear that the plaint be levy  before the plaintiff have any cause of action as to the second exception the  court do not take any notice of it and as to the three exception they hold  that the plea be well plead in bar and holt chief justice remember a case  adjudge between wildman and north wherein the defendant in replevin plead  property in himself in bar to the action and there per hale chief justice it  ought to be so plead and not in abatement notam the judgement be right for the  pledge be only surety to the king for the plaintiff amerciament and ought not  to be amerce themselves Inst Plowd the precedent be both way raze Ent a   Ent  a roll Abr h bro return aver plea h h vent SC lev SC keb Carthew er p and far  that such plea of property in himself do not amount to the general issue non  to take in hand and it be agree in that case by the whole court that property  in a stranger may be plead either in bar or abatement at the election of the  pleader resolve in the case at bar that where the defendant in replevin plead  property in himself or in a stranger there he need not make any avowry pro  return habend because the plea it self do comprehend good cause for a return  since the plaintiff have no property and the difference be where the plea go  to the very point of the writ as here and where this only collateral matter as  priest in auter lieu for there a suggestion must be make in nature of a avowry  pro return habend because the plea in it self do not contain any matter for a  return for though it may be true yet the take may be tortuous the judgement  above be reverse and a new judgement give videlicet that the plaint shall  abate and that the defendant shall have a return c quod notam