¶1In answer to the avowry, the plaintiff pleads atender of the two sums of $1,50, and $9,50, to the defendant, and to Stiles, each, on the 12th of September, on which issue is joined.
¶2The replication alleges a pound breach on the 6th of September, a recaption on the 12th of September, and additional costs, amounting to the sum of $17,73, not included in the tender to the defendant, or to Stiles.
¶3The rejoinder alleges that the lawful additional costs were included, on which issue is joined.
¶4The defendant contends that he has a right to the close.
¶5In replevin, if there be any affirmative issue on the plaintiff, he is entitled to begin. Curtis v. Wheeler, 1 M. & M. 493. In considering which party ought to begin, it is not so much the form of the issue which is to be regarded as the substance and effect of it, and the judge will consider what is the substantial fact to be made out, and on whom it lies to make it out. Seward v. Leggett, 7 C. & P. 613; Belknap v. Wendell, 1 Foster’s Rep. 375. In this case the affirmative of both issues is on the plaintiff, and he has the right to begin and close.
¶6As to the costs, the sum allowed for sustenance of creatures impounded and'for the cows in this case, is fifteen cents per day each. Rev. Stat. ch. 137 § 19.
¶7The pound keeper’s fees are five cents each for the cows, and the same fees in case they are retaken after pound breach. Rev. Stat. ch. 137 § 20.
¶8The fees to the person impounding are particularly specified, and then follows this clause, “ and the same fees in case of creatures retaken after pound breach.” Rev. Stat. ch. 137 § 21.
¶9It thus appears that the costs upon a recaption are the same as those incurred upon the impounding, and the whole costs are made up by the addition of the two bills of costs. *216The court ruled that the defendant and the pound keeper were limited to the costs specified in the statute, and that the plaintiff was at liberty to show that the lawful fees and costs were less than the sum of $17,73, and this ruling was correct.
¶10The jury found that the tender to the defendant was, made as the plaintiff alleged. As here was a recaption, the amount of the tender should have been a sum equal to the costs of. the impounding, with the same sum in addition for the costs of the recaption. It does not appear what the fees were, or how the sum of $9,50 was made up.
¶11The question, then, seems to be whether, under the pleadings, it was open to inquiry what the lawful additional costs were. The defendant alleges that they were $17,73, and that they were not included in the tender. The plaintiff rejoins that the lawful additional costs were included, but he does not deny that this was the lawful sum. Upon the principle that whatever is not denied in pleading is admitted, the question whether this was the lawful sum cannot be inquired into.
¶12This does away with the effect of the verdict upon the tender of the two sums of $1,50 and $9,50, for there was a recaption and there were additional costs, which on the pleadings must be taken to be the. sum of $17,73. But in order to inquire into this, the pleadings must be amended.
¶13The instruction of the court in relation to the tender made after the writ was put into the hands of the sheriff, was, in our opinion, correct.
¶14In order that the pleadings may be amended, we shall direct the
¶15Verdict set aside.