Belden v. Laing

Campbell J.: The demurrer, we think, ought to have been sustained? Whether we look at the form of the plea, or the subject matter sought to be introduced by it. A plea in abatement must have the highest degree of certainty and precision: — 1 Chitty Pl. 395; Findley v. People, 1 Mich. 235 — and therefore every allegation necessary to make out the case covered by it must be distinctly and not inferentially- set forth. This plea would require some liberality to sustain it if put in as a plea in bar, under any system of special pleading. To say nothing of other omissions, it contains no allegation from which we can infer that the writ of replevin, under which it alleges the property to have been first taken by Laing, as Sheriff, was directed against the property levied upon. If a Sheriff, with the most regular writ, should seize property not described in his writ, he certainly could not justify under it. Neither does it appear that any affidavit, was annexed to the writ, without which the Sheriff is expressly forbidden to serve it: — Comp. L. p. 1331, §5011 These and other omissions, not perhaps so substantial, would render the plea demurrable, if a plea in abatement were proper at all. But we think the defense, if valid, should have been offered in bar, and not in abatement. The object of our statutory replevin is to determine the right of possession at the commencement of the action, as well as title to the property for temporary or permanent purposes connected with that possession. Anything going to show that the plaintiff in replevin had no right to the possession when he commenced his suit, is a complete bar to his action. And proof that a Sheriff had taken property on a lawful writ from the plaintiff, and continued lawfully to hold it under that writ, when replevin was brought, would go to negative the plaintiff’s right of possession, and, of course, defeat his suit. «The statute requires an affidavit that the plaintiff is entitled to [504] the 'possession, that the defendant unlawfully detains the property, and that it has not been taken by any of various kinds of process enumerated; but does not in terms require anything more. These facts, if true, cover every case which, could ordinarily arise. If untrue, they go to defeat the right of action entirely, as existing at that time, not only in that suit, but in any action whatever depending on a right of possession. Such a showing is not the ordinary office of a plea in abatement, which, in respect to a former suit pending, does not deny or put in issue the cause of action, but merely objects that it is already in course of litigation. Whether cross replevins between the same parties will lie, where no new parties are introduced, is a question entirely beside this case. It may be worthy of consideration however, whether, under a plea in abatement, if it lies, the statute provides for a return of the property, or an assessment of damages. It may be found that the provisions on this subject have a bearing on the question of pleading. We are not disposed to consider these questions any further than may be necessary in this case. In the present case, the plea does not show any idennity of issues, and it would be impossible in the present action to try the merits of the former action. In that, the question involved was simply the title of the Goulds to possession as against the two Beldens; all the other questions of title and damages being incidental, and that being the only ground on which the action was maintainable. In the present action, the question of possessory right arises— according to the plea — not between Belden and the Goulds, but between Belden & Laing. And Laing’s possessory right, if his writ was valid, could not be impaired or affected, although Belden might show a perfect title as against the Goulds. The issues are entirely different upon the right of possession, which is the only foundation of either action. [505] Judgment must be reversed with costs, and the defendants are required to plead’ over. Manning and Christiancy JJ. concurred.