Foshay v. Riche — 2 Hill & Den. 247

Majority

p. 247

Foshay vs. Riche.

Headnote

Where, in replevin, the defendant avowed the taking of the goods in question as the property of A., to which the plaintiff pleaded a prior taking by himself, as sheriff, upon a fi.fa. issued against A., and that, at the time of the taking complained of, he possessed and detained the goods to satisfy thefi. fa.; held, that a replication protesting the issuing of the fi.fa., and asserting that at the time when, &c. the goods were not lawfully possessed and detained by the plaintiff, was bad, as neither denying, nor confessing and avoiding any fact alleged in the plea.

Demurrer to replication. The declaration was in replevin for taking, &c. certain goods. The defendant avowed the taking, &c. of the goods, as the property of one Miller, in whose possession they were at the time when, &c. Plea, a prior taking of the goods by the plaintiff, as under sheriff of the county of Westchester, on afi. fa. issued against said Miller; and that at the time of the taking complained of, he the said plaintiff held and detained the goods in question by virtue of the fi. fa., and for the purpose of satisfying the same. Replication, protesting the issuing of the fi. fa., arid asserting that the plaintiff did not, at the time when, &c. lawfully hold and detain the goods in virtue thereof. Demurrer and joinder.

M. T. Reynolds, for the plaintiff.

J. L. Tillinghast, for the defendant.

The replication attempts to put in issue matter of law, rather than of fact. It protests the issuing of the Ji. fa., and then, without meeting the plaintiff’s- allegation that, at the' time of the taking complained of, he held and detained the goods under a fi. fa. in virtue of a previous levy, it simply asserts that he did not lawfully hold and'detain them. In short, the replication neither denies the matters alleged in the plea, nor does it confess and avoid' them. There must be judgment for the plaintiff.

Ordered accordingly.