Wells v. McClenning

Decided January 15, 1860

Illinois Supreme Court · decided 1860-01-15

Declaration by plaintiff in error alleges that, on the 27th day of August, 1858, the defendant was unlawfully possessed of a certain sorrel mare, the property of plaintiff, to be delivered to plaintiff by defendant on request, but that the defendant, though requested, refused to deliver said mare to plaintiff, and so the defendant wrongfully detains the same.

Cited by 1 later decisions — most recently April 1905

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1860-01-15

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Breese, J.

¶1We are well satisfied on reason and authority, that the judgment and recovery in the first action of replevin is an estoppel in this action. The plaintiff, in that action, alleged property in himself, and an unlawful detention by the defendant. By pleading non detinet only, he admitted, on the record, the property was in the plaintiff, and he can never again, in any court, call in question that fact. It was a material averment, and if the property was not his, but the defendant’s, he should have made then and there the issue. It is now too late. o

¶2The demurrer was properly overruled, and the judgment is affirmed.

¶3Judgment affirmed.