Lammers v. Meyer

Citations

• 59 Ill. 214

Syllabus

<p>1. Pleading—of a plea of justification in replevin. Iu an action of replevin, a plea of justification, that the defendant took the propel^ by virtue of an execution directed to him as sheriff, averred “ that, at the time when, etc., to wit, on the 22d day of August, 1870, he was sheriff,” etc., “and on the 24th day of May, 1870, at said county, an execution came into his hands, as such sheriff, issued by the clerk,” etc., “ dated the 24th day of May, 1870, on a judgment in said court, rendered on the 14th day of April, 1870,” “ which said judgment was then and there in full force and effect,” “ directed to this defendant, as such sheriff, to execute, and that by virtue of said execution this defendant, as such sheriff, did, on the 22d day of August, 1870, and in the lifetime of said execution, take said goods,” etc. On objection that the plea did not show the execution was in full force at the time of the levy, it was hdd, according to a reasonable construction the plea showed that the judgment, and of course the execution issued thereon, were in full force and unsatisfied on the 24th day of Majr, 1870, and that the levy was in the lifetime of the execution. This was equivalent to an averment that the execution was in full force at the time of the levy.</p> <p>2. In such a plea, no allegation was necessary as to the date of the judgment, and it might be rejected as surplusage, and need not be proved. Its rejection would not alter the general sense or effect of the plea.</p> <p>3. Same—of the certainty required in a plea. A plea is not objectionable on account of obscurity or ambiguity, if it be certain to a common intent. It need only be clear epough according to reasonable intendment and construction. The rule is, that the natural sense must prevail.</p> <p>4. Same—words of reference, as “ there ” and “ said,” even in an indictment, will not be referred to the last antecedent, if the sense requires that they should be referred to some prior antecedent.</p> <p>5.