Lamping Bros. v. Payne

Citations

• 83 Ill. 463

Syllabus

<p>1. Replevin—matter of inducement in plea is not traversable. Where a plea, in an action of replevin, sets up an execution against a third party, and a levy by the defendant, as an officer, of such execution upon the goods in dispute as the property of such third party, and avers that the goods in dispute were the property of such third party, and were not the property of the plaintiff, the averments as to the execution and levy are mere matters of inducement, which may be treated as surplusage, and still the plea would present a good defense to the action.</p> <p>2. By a general demurrer to such a plea, the plaintiff confesses that the goods in question are not his, as claimed in his declaration, but are the goods of another; and that being so, the action can not be maintained, and it is unimportant whether the defendant, as to the one confessed to be the owner, has a lawful right to meddle with the goods or not.</p> <p>3. Statute—construction of as to alternative judgment in replevin. Section 22, chapter 119, Revised Statutes of 1874, page 853, applies only to cases where the general property is in the plaintiff, and the defendant shows a special property, consisting of a right to hold the property as against the plaintiff only for a certain sum of money, as, where the defendant shows special property by a levy of a fi. fa. against the plaintiff, or where he holds the property by virtue of some lien, as a carrier, warehouseman or otherwise.</p>