Rodman, J.
To a proper understanding of this case, it is necessary to extract from pleadings by no means definite, the issues between the parties.
The plaintiff by his amended, complaint alleges in substance, that the defendants in July, 1869, took from his possession, and converted to their own use, certain property for which he claims damages.
The defendants plead jointly, and,
1. Deny the taking and conversion.
2. The second article in the answer only denies the value of the property, and may be rejected as immaterial.
3. Admits that Barrett, sheriff of Person, seized the property under process in an action of Harris against the
plaintiff, Woody, but denies that it was done at their request, ■&c.
4. Denies that plaintiff has been damaged, and ■ is immaterial.
5. That some part of the property has been turned to the plaintiff. By an amended answer, the defendants, say :
1. That every allegation of complaint is untrue. This is not in accordance with C. C. P., and may be disregarded.
For a second defence.
1. That plaintiff has a complete remedy in the action of
Harris
v.
Woody.
2. That the property has been returned to plaintiff under the judgment in
Harris v. Woody.
The two defendants, Williams and Brooks, by leave, filed separate answers in substance, denying the taking and conversion.
Under the opinion of his Honor that “ the judgment against the defendants in the action of
Harris
v.
Woody
was a bar to the plaintiff’s right to recover in this action,” the plaintiff submitted to a verdict against him and appealed.
In what particular way, or for what particular reason, the judgment in
Harris
v.
Woody
barred the present plaintiff, we are not told either in the pleadings, or by his Honor, or in the argument of the counsel. It may be supposed that it was considered to do so in one of two ways, as being an adjudication of the same matter now in controversy between the same parties, or that the action of Harris was still pending and that it was open to Woody to obtain in that action the relief which he seeks in this.
To examine either of these views, it is necessary to look at the record of the case of
Harris
v.
Woody.
It was an action to recover from Woody the property, the taking and conversion of which is the ground' of complaint in this suit. The summons was issued the 5th of July, 1869, and was made returnable before the clerk in twenty days after service as required by C. C. P., secs. 73, 74.
Harris made the affidavit required by sec. 176, whereupon the clerk issued to the sheriff process, under which the property was taken by him and delivered to Jordan as the agent of Harris.
All the present defendants were sureties to the undertaking given by Harris under sec. 176. But the undertaking does not appear to be in the form prescribed.
The defendants answered, and afterwards the Judge dismissed the action for want of jurisdiction. At the nest Term, Fall, 1869, on motion of Harris, the judgment of dismissal was set aside, and the case redocketed. At that or some subsequent term of the Court, it was ordered that Harris should give further security for the prosecution, or justify within thirty days, or on his failure, the action should be dismissed, and Woody have judgment against Harris and his sureties for a return of the property and for costs. Harris failed to comply with the order, and on the 6th of December, 1870, the clerk entered judgment according to the order, and issued an order to the sheriff commanding him to return the property, and a part of it was returned on the 8th of April, 1871. There was no inquiry as to the value of the property, nor for the damages of detention.
As to the first view, a mere inspection of this record is sufficient to show that as a matter of fact, the judgment did not decide upon the present cause of action. In this action, the thing claimed is damages for the taking and conversion of the property, whereas in that, the judgment was only for the taking and detention.
As to the second view that Woody can still obtain in the action of
Harris
v.
Woody,
the relief which he seeks in this.
As to the general principles bearing more or less directly on the question, there can be but little doubt.
No plaintiff who has an action pending can maintain a second action against the same defendant for the same cause;
the pending of such first action may be pleaded in abatement of the second, but not generally in bar.
Bac. Abr. Abatement. A defendant in replevin is an actor, and may obtain in that action damages for the taking and detention.
Eborn
v.
Waldo,
5 Jones, 438. So that it must be conceded -that Woody could at one time have recovered against Harris, and
perhaps
against his sureties, (though that is doubtful,) substantially the same damages he claims in this action. But was he obliged to do so, and could he have done so at the time when the plea we are considering was pleaded ?
It is not a general rule that a defendant is
obliged
to assert a set off or counter-claim in an action against him whenever he
may
do so. If he does plead a counter-claim, he cannot during the pendency of that action have a separate action upon it, and he is bound by any adjudication on it. But he is not bond by the plaintiff’s recovery as to any set off or counter-claim which he did not plead. And in the action of replevin, he is at liberty to have his damages found or not, and whether they are found or not, he can maintain his common law action in the replevin bond. At least this is the practice in England, and there is no reason why it should be otherwise here.
Perrean
v.
Bevan,
5 B. & C., 284, (5 E. C. L. R., 230.)
Ordinarily, a suit upon the replevin bond (or undertaking) would be the only remedy to a defendant for the
taking
under the process, because the process, if regular, would be a justification for the
taking,
and no recovery could be had for it in an action of trespass.
At common law, the defendant could only have judgment for a return of the goods, and in this State, as late as 1849, he could have no other judgment in case the plaintiff became non-suit.
Pannell
v.
Hampton,
10 Ired., 463. It must be then that the common law gave him full indemnity by means of a separate action (of what sort, I have no
where found stated, but probably oil the case,) for the damages from the taking and detention. That the common law remedies ha^ not been abolished, and the statutory ones are only cumulative, is proved by
Perrean
v.
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Rodman, J.
To a proper understanding of this case, it is necessary to extract from pleadings by no means definite, the issues between the parties.
The plaintiff by his amended, complaint alleges in substance, that the defendants in July, 1869, took from his possession, and converted to their own use, certain property for which he claims damages.
The defendants plead jointly, and,
1. Deny the taking and conversion.
2. The second article in the answer only denies the value of the property, and may be rejected as immaterial.
3. Admits that Barrett, sheriff of Person, seized the property under process in an action of Harris against the
plaintiff, Woody, but denies that it was done at their request, ■&c.
4. Denies that plaintiff has been damaged, and ■ is immaterial.
5. That some part of the property has been turned to the plaintiff. By an amended answer, the defendants, say :
1. That every allegation of complaint is untrue. This is not in accordance with C. C. P., and may be disregarded.
For a second defence.
1. That plaintiff has a complete remedy in the action of
Harris
v.
Woody.
2. That the property has been returned to plaintiff under the judgment in
Harris v. Woody.
The two defendants, Williams and Brooks, by leave, filed separate answers in substance, denying the taking and conversion.
Under the opinion of his Honor that “ the judgment against the defendants in the action of
Harris
v.
Woody
was a bar to the plaintiff’s right to recover in this action,” the plaintiff submitted to a verdict against him and appealed.
In what particular way, or for what particular reason, the judgment in
Harris
v.
Woody
barred the present plaintiff, we are not told either in the pleadings, or by his Honor, or in the argument of the counsel. It may be supposed that it was considered to do so in one of two ways, as being an adjudication of the same matter now in controversy between the same parties, or that the action of Harris was still pending and that it was open to Woody to obtain in that action the relief which he seeks in this.
To examine either of these views, it is necessary to look at the record of the case of
Harris
v.
Woody.
It was an action to recover from Woody the property, the taking and conversion of which is the ground' of complaint in this suit. The summons was issued the 5th of July, 1869, and was made returnable before the clerk in twenty days after service as required by C. C. P., secs. 73, 74.
Harris made the affidavit required by sec. 176, whereupon the clerk issued to the sheriff process, under which the property was taken by him and delivered to Jordan as the agent of Harris.
All the present defendants were sureties to the undertaking given by Harris under sec. 176. But the undertaking does not appear to be in the form prescribed.
The defendants answered, and afterwards the Judge dismissed the action for want of jurisdiction. At the nest Term, Fall, 1869, on motion of Harris, the judgment of dismissal was set aside, and the case redocketed. At that or some subsequent term of the Court, it was ordered that Harris should give further security for the prosecution, or justify within thirty days, or on his failure, the action should be dismissed, and Woody have judgment against Harris and his sureties for a return of the property and for costs. Harris failed to comply with the order, and on the 6th of December, 1870, the clerk entered judgment according to the order, and issued an order to the sheriff commanding him to return the property, and a part of it was returned on the 8th of April, 1871. There was no inquiry as to the value of the property, nor for the damages of detention.
As to the first view, a mere inspection of this record is sufficient to show that as a matter of fact, the judgment did not decide upon the present cause of action. In this action, the thing claimed is damages for the taking and conversion of the property, whereas in that, the judgment was only for the taking and detention.
As to the second view that Woody can still obtain in the action of
Harris
v.
Woody,
the relief which he seeks in this.
As to the general principles bearing more or less directly on the question, there can be but little doubt.
No plaintiff who has an action pending can maintain a second action against the same defendant for the same cause;
the pending of such first action may be pleaded in abatement of the second, but not generally in bar.
Bac. Abr. Abatement. A defendant in replevin is an actor, and may obtain in that action damages for the taking and detention.
Eborn
v.
Waldo,
5 Jones, 438. So that it must be conceded -that Woody could at one time have recovered against Harris, and
perhaps
against his sureties, (though that is doubtful,) substantially the same damages he claims in this action. But was he obliged to do so, and could he have done so at the time when the plea we are considering was pleaded ?
It is not a general rule that a defendant is
obliged
to assert a set off or counter-claim in an action against him whenever he
may
do so. If he does plead a counter-claim, he cannot during the pendency of that action have a separate action upon it, and he is bound by any adjudication on it. But he is not bond by the plaintiff’s recovery as to any set off or counter-claim which he did not plead. And in the action of replevin, he is at liberty to have his damages found or not, and whether they are found or not, he can maintain his common law action in the replevin bond. At least this is the practice in England, and there is no reason why it should be otherwise here.
Perrean
v.
Bevan,
5 B. & C., 284, (5 E. C. L. R., 230.)
Ordinarily, a suit upon the replevin bond (or undertaking) would be the only remedy to a defendant for the
taking
under the process, because the process, if regular, would be a justification for the
taking,
and no recovery could be had for it in an action of trespass.
At common law, the defendant could only have judgment for a return of the goods, and in this State, as late as 1849, he could have no other judgment in case the plaintiff became non-suit.
Pannell
v.
Hampton,
10 Ired., 463. It must be then that the common law gave him full indemnity by means of a separate action (of what sort, I have no
where found stated, but probably oil the case,) for the damages from the taking and detention. That the common law remedies ha^ not been abolished, and the statutory ones are only cumulative, is proved by
Perrean
v.
Bevan
above cited.
We think Woody was not obliged to have his damages found in Harris’ action against him, and did not by failing to do so, forfeit his right to whatever remedy he had at common law.
Neither can he now obtain redress by any proceeding in the case of Harris, for that action is dismissed, and is no longer pending for such a purpose. In
Pannell
v.
Hampton,
and in
Waldo
v.
Eborn,
it is assumed that a plaintiff in replevin may take a non-suit or dismiss his action. Whether this remains true in general we need not inquire, but it must necessarily be so where the defendant requires further security for the prosecution which the plaintiff
fails
to give-A judgment of non-suit or dismissal is final in that action.
We have not noticed another objection to the defence supposed, regarding it as a plea in abatement of the pendency of another action, viz: that it is not pleaded as such, and is pleaded along "With pleas in bar. It is familiar learning that a plea in bar waives a plea in abatement, and this is not from any artificial or obsolete reason, but from the essential difference in the character and effect of the two species of plea. We do not think that there is anything in C. C. P., abolishing this rule. But it is not necessary to put our decision on this principle, conceiving that the reasons above given which go to the merits of the defense are sufficient.
There is a third view in which the answer setting up the proceedings in
Harris
v.
Woody
must be considered, and which was probably the one intended by defendants in the third article of their joint answei., We think the defendants intended to plead the process in that action as a justification for the taking, and we proceed to examine the answer
as such. Certainly the process was a justification to the sheriff, and if it had been regular it v/ould also have been to the plaintiff and to those who merely aided the sheriff as to the taking. But the process was irregular. The summons was irregular, because it was not returnable in term time, as it was required to be by the Act of 1868-69, chap. 76, which was ratified in the March preceding the summons, and went into immediate effect. It is not necessary to say that this process was void. We do not think it was. But it was irregular, and irregular process after it has been set aside, is no justification to the plaintiff in the action or to his attorneys and aiders.
Barker
v.
Braham,
3 Wils. 368;
Skinner
v.
Moore,
2 Dev. & Bat. 138. In this case the action was dismissed, which we consider equivalent to setting aside the irregular process.
If, however, the process had been regular, although it would have been a justification to the
taking,
it would not have been to the
conversion
alleged in the complaint. It is a well-known principle that .an abuse of a power in law makes the officer and all who concur with him in the abuse trespassers
at initio.
Six Carpenter’s case; 1 Smith L. C. 62, and notes.
It is true that regular and orderly pleading required the plaintiff to omit the allegation of the conversion from his complaint, and to reply it to the plea of justification. Borey’s case, 1 Vent. 217, cited in notes to Six Carpenter’s case. But we nowhere find it said that a complaint is bad because it leaps too soon and charges an abuse, or that the defendant is not bound to deny the abuse. Here the defendants do deny the abuse; but that raises an issue of fact with which we have not to deal. We only say that the process .is no justification either of the taking or of the conversion if they be proved.
We have dealt only with the questions of law raised by the plea of defendants setting up the proceedings in
Harris
v.
Woody.
The issues of fact remain to be tried by a jury. We have not alluded to the record of the proceedings in the Circuit Court of the United States, because that does not bear on the plea we have been considering. That can only be pertinent to the issue upon the right of property in the goods as evidence of Jordan’s title. In that view he will have upon the future trial whatever benefit he may be entitled to from it. But in answer to an argument by the defendants’ counsel in this Court, we may say that neither a Superior Court nor this Court has jurisdiction to declare null or to revise a judgment of the Circuit Court setting aside a former judgment of its own. The effect of that record for the purpose mentioned in a question of law, but one not before us on this appeal.
Judgment reversed and case remanded. Let this opinion be certified.
Per Curiam. Judgment reversed.