Armstrong v. McMillon

9 Mo. 712

• Court: Supreme Court of Missouri
• Decided: January 15, 1846
• Status: Published

Opinion

Scott, J.,

delivered the opinion of the court.

This was an action of replevin, brought by Armstrong' against Md-> Millón, to recover the possession of certain slaves. McMillon pleaded an abatement, “that he was in possession of the slaves in the declara-» tion mentioned, as a receiver in a suit in chancery, in which Littleber-» ry Bedford, and Nancy, his wife, are complainants, and the said plain* tiff, Hugh C. Armstrong, and James C. Armstrong, are defendants; and that the said property was put in his hands and possession, as receiver by virtue of legal authority, which the said defendant is ready to verify,” &c. To this plea there was a demurrer, which was overruled, and judgment was entered for the defendant.

If the property were taken from Armstrong by authority of law, and was in the hands of a receiver, appointed by a court of chancery, that court was competent to restrain any action by Armstrong, to regain possession of it, so long as the right to it was undetermined. It would be a manifest contempt of the authority of the court, for a party in that indirect way to attempt to defeat its order. If the defendant held the slaves as the receiver of a court of chancery, his proper course was, to apply to that court to restrain the proceedings of the plaintiff. As he has no’c thought fit to do so, but has defended the action at law, his de-fence, if it do exist, would be available under the plea of not guilty, given by the statute to the defendant in replevin. As it is, the plea in abatement is insufficient. The facts, constituting the defence, are not alleged with sufficient precision to enable the party to take issue on them. It does not appear when, where, or how the defendant was appointed receiver.

The other Judges concurring, the judgment will be reversed, and the cause remanded.