
    * Samuel Larned versus Isaiah Bruce and Others.
    In debt, on a replevin bond, the defendants pleaded performance generally; the plaintiff replied, that he had judgment for a return, and that no return had been made; the defendants rejoined, that the plaintiff in replevin reviewed the action, that the now plaintiff had judgment and execution, on which the chattel replevied was seized and sold. The rejoinder was adjudged bad, as a departure from the plea in bar.
    This was an action of debt upon a replevin bond, in which the defendant Bruce was principal, and Joel Cranston and Daniel Stephens, jun., the other defendants, were sureties.
    The defendants prayed oyer of the bond, and of the condition, from which it appears that the defendant Bruce, having sued a writ of replevin of a horse against the plaintiff, gave this bond with the sureties, as required by the statute of 1789, c. 26, that his writ might be executed. The defendants then plead a general performance of the conditions of the bond. The plaintiff, in his replication, alleges that Bruce prosecuted his action to final judgment, which was rendered for Larned, the now plaintiff, that he recover his damages and costs, and also that he have a return of the horse. He then assigns, as a breach of the condition, that Bruce has never returned the horse. — The defendants, in theit rejoinder, allege that Bruce reviewed the action; that, on the review, Larned had judgment and execution for damages; and that, on the execution, and to satisfy the same, the officer to whom it was directed seized and sold the horse. — To this rejoinder the plaintiff demurs specially, and among other causes of demurrer, assigns for cause that the rejoinder is a departure from the plea in bar. The defendants join in demurrer.
    No argument was had ; and the action being continued nisi for advisement, the opinion of the Court was delivered at the next March term, in Boston, by
   Parsons, C. J.

The issue in law in this case is, whether the rejoinder is, or is not. a sufficient answer to the replication. And we are of opinion that the rejoinder is bad, as being a departure from the bar. The bar alleges a performance of all the conditions contained in the * bond, among which was a [*58] condition to return to Larned the horse, if he should have judgment for a return. The replication alleges such a judgment. The rejoinder does not traverse the judgment for a return, nor does it allege any return; but the defendants would confess and avoid the breach, assigned in the plaintiff’s replication by a collateral fact, which is clearly a departure from the bar.

It therefore appears to us, that the rejoinder is bad and insufficient in law. The plaintiff may recover the penalty, of the bond, unless, on a hearing in equity, pursuant to the statute of 1785, c. 22, the defendants should be entitled to relief against the forfeiture.

Rejoinder adjudged bad.

The defendants were afterwards heard in equity, and were relieved by the Court; judgment being entered only for the damages the plaintiff had sustained by the breach of the condition of the bond. 
      
       [The matter of the rejoinder, if it had been insisted upon at first, would have afforded a complete bar to the action. — Ed.]
     