Loomis v. Foster
Michigan Supreme Court
Error to Allegan Circuit Court. Replevin under R. S. 1838. The declaration averred a wrongful and unlawful detention by Loomis of a grey horse belonging to Foster. Plea, not guilty. On the trial, Foster proved that on 30th April, 1844, before suit was brought, he demanded the horse of Loomis, who refused to give him up, stating he owned .the horse himsel£ Foster then proved his damages by reason of the detention, and rested.
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Error to Allegan Circuit Court. Replevin under R. S. 1838. The declaration averred a wrongful and unlawful detention by Loomis of a grey horse belonging to Foster. Plea, not guilty. On the trial, Foster proved that on 30th April, 1844, before suit was brought, he demanded the horse of Loomis, who refused to give him up, stating he owned .the horse himsel£ Foster then proved his damages by reason of the detention, and rested. Thereupon Loomis offered to prove the horse belonged to him; but the court rejected the evidence, on the ground that by his plea of not guilty he admitted the property…
1Opinion of the Court
By the court,
Wing, J.
It is urged in support of the decision of the circuit judge, that there were two material allegations in the declaration, one or both of which defendant might have traversed, as the nature of his .defence required, viz:
1. The right of possession of the plaintiff.
2. The detention of the property.
It is urged that the session law of 1839, p, 230, see. 44, which prescribes the form of the general iss&e in replevin, has -jn no respect changed the nature or effect of the general issue in this action at common law, which was non cepit, and which only denied the taking, but…
2Cases cited1 opinion
- Rogers v. ArnoldNew York Supreme Court · 1834
3Cited by4 opinions
- Wilson v. FullerSupreme Court of Kansas · 1872
- Holliday v. McKinneSupreme Court of Florida · 1886
- Singer Manufacturing Co. v. BenjaminMichigan Supreme Court · 1884
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