Chinn v. McCoy ex rel. Allingham

Breese, J. This was an action of debt on a bond given by Chinn, with Hart as his surety, in an action of replevin commenced by him in the Warren Circuit Court, for a certain sorrel mare, and there determined against him. The declaration sets out the proceedings in the replevin suit; making the affidavit; issuing the writ of replevin ; the making and delivery of the bond, setting it out in hcec verba; the service of the writ; replevying and delivering the property of Chinn; the appearance, pleading, issues and trial; and the judgment, which was as follows, in conclusion : f‘ such proceedings were had that the said Thomas Allingham recovered of and from the said Talbott Chinn, one of said defendants, his costs in that behalf expended, and also had judgment of said court for a return of said sorrel mare, as by the record now remaining in said court will more fully appear.” The plaintiff then avers that a writ of retorno habendo was issued and returned, that the property was not found ; that Chinn has not paid the costs in the replevin suit; that he has not returned the mare; and that he has not saved and kept harmless the plaintiff in executing the writ of replevin. To this declaration three pleas were filed; the first a special plea, to which a demurrer was filed, and the plea was adjudged bad, and this is the only question in the case. This plea is substantially as follows: “ And the said defendants come and defend the wrong and injury, when, etc., and say that the plaintiff ought not to recover more than nominal damages in this case, because, they say, the sorrel mare replevied in the original action, etc., in which the bond in suit was given, was, at the time of the trial of the said cause, the property of the plaintiff in said cause, the said Chinn, and that the merits of the case have not been heard and were not determined in said case, and the defendants set out specifically and show why the merits were not determined in the said action of replevin; that the said action was brought to recover the possession of a certain sorrel mare, particularly described in said declaration filed in the cause, which was averred therein to be the property of the plaintiff, and charged therein to be wrongfully detained by the defendant in the suit, as appears by the declaration filed, etc., and to which declaration the defendant filed his pleas one, two, three and four, the first of which was non detinet, designed to put in issue the detention of said property; the second was property in the said defendant; the third denied the plaintiff’s right of possession of the property at the time of suit brought; and the fourth plea was non cepit, as charged, etc., all of which appears, etc., and defendants aver that the plaintiff, in that case, joined issue on the first and fourth pleas, and replied to the second and third, denying the facts set up therein, and issue was'joined, all of which appears, etc.; and the said defendants aver that, on the trial of said cause, evidence was introduced by the plaintiff in said cause, proving conclusively that the property sued for was the property of the plaintiff in said cause, as alleged in the declaration, and which evidence was not rebutted by any evidence on the part of the said defendant therein. But defendants aver that the jury in the cause found for the defendant therein, the plaintiff in this case, solely in consequence of the failure of the plaintiff in that cause to prove a demand on the defendant therein for the property before the commencement of the suit, and not for any other or different reasons, and the right of property to the said mare was not determined in said suit,” concluding with a verification. It will be perceived this plea does not go to the whole action, but to a part only — to the damages. It does not bring up again for determination the right of the defendant, in replevin, to have a return of the property, but the question of damages only. The plea is framed under the authority of the act of March 1, 1847, entitled “An Act concerning practice,” Laws 1847, 62, which is as follows: “ In all actions upon replevin bonds where the merits of the case have not been determined in the trial of the action of replevin in which the bond was given, the defendant may plead the above facts, and also his or her title to the property in dispute on the said action of replevin.” f This plea, then, is good in form and substance — purports to be to part of the action only, and shows, with legal precision, the facts on which the cause was tried, and why the merits of the case were not determined, and meets all the objections made in the case of King et al. v. Ramsay, 13 Ill. R. 622, and also the views of the court in Warner v. Matthews, 18 ibid. 83. The judgment is reversed and the cause remanded. Judgment reversed.