Armstrong v. Mock
Illinois Supreme Court
This was an action of replevin, commenced by Mock vs. Armstrong, in the Circuit Court of Menard county, at the May term thereof, 1855, for one hundred and forty-one head of cattle. The affidavit for the replevin and the declaration are in the usual form of taking and detention, and, to the declaration, the defendant filed several pleas, to-wit: that defendant did not take— that defendant did not detain—property out of plaintiff, and in defendant—property in defendant alone.
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This was an action of replevin, commenced by Mock vs. Armstrong, in the Circuit Court of Menard county, at the May term thereof, 1855, for one hundred and forty-one head of cattle. The affidavit for the replevin and the declaration are in the usual form of taking and detention, and, to the declaration, the defendant filed several pleas, to-wit: that defendant did not take— that defendant did not detain—property out of plaintiff, and in defendant—property in defendant alone. There was issue proved on three of these pleas, but not to the fourth one. A jury was called, and found for the…
1Opinion of the CourtScates, C. J.
The parties went to trial without a formal joinder of issue on the fourth plea. The substance of the plea was property in defendant below, plaintiff here. The third plea put the same fact in issue. Proceeding to trial without a formal issue, is, after verdict, treated as a waiver either of the issue or the plea; and verdict will not be set aside, if there were no plea. Brazzle et al. v. Usher, Breese R. 14; Ross et al. v. Reddick, 1 Scam. R. 74. It is based upon the supposition, and doubtless founded in truth, that the real merits in controversy have been tried and determined. But this reason…
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