We are well satisfied on reason and authority, that the judgment and recovery in the first action of replevin is an estoppel in this action. The plaintiff, in that action, alleged property in himself, and an unlawful detention by the defendant. By pleading non detinet only, he admitted, on the record, the property was in the plaintiff, and he can never again, in any court, call in question that fact. It was a material averment, and if the property was not his, but the defendant’s, he should have made then and there the issue. It is now too late. o

The demurrer was properly overruled, and the judgment is affirmed.

Judgment affirmed.