
    John Flagg, Jun., versus William Tyler.
    In debt upon a replevin bond against the surety, the defendant pleads that the goods replevied were the proper goods of the plaintiff in replevin, and were attached and held as such by the defendant in replevin, who was a deputy sheriff, upon mesne process against the plaintiff in replevin. The plea was adjudged bad.
    This was an action of debt on bond. The defendant prays oyer of the bond and the condition, by which it appears to have been a replevin bond executed by the defendant as surety for one William Neal, who was plaintiff in replevin and principal in the bond. The bond was pursuant to the statute. The defendant pleads that he ought not to be charged with the said debt by virtue of the said writing obligatory, because he says it was executed as a replevin bond by him and Neal, and delivered to one J. W., a coroner of said county, with a writ of replevin in favor of Neal against the present plaintiff, which process was founded on the statute of 1789, cop. 26, and by the said writ the coroner was commanded, among other things, to replevy the goods therein described, and deliver the same to said Neal, provided the same were not taken and detained by said Flagg upon mesne process, warrant of distress, or upon execution as the property of said Neal, and to summons said Flagg to appear, &c., provided said Neal should give bond, &c. And the said bond was made, executed and delivered to said coroner as a part of said replevin process, and to be returned with said writ for the use of said Flagg, provided the said writ should be executed conformably to law, and to the requisitions and provisions therein contained. And the said Tyler further says, that the goods aforesaid wore the property of said Neal, and taken and detained by said 
      Flagg, who was then a deputy sheriff for the same county, as the property of said Neal upon mesne process, viz., on a writ of attachment against him in favor of one T. H., returnable, &c., yet the said J._ W., the coroner, well knowing the premises, * executed said writ of replevin contrary to the directions [ * 304 ] thereof, and against law, and returned said writ and bond to the Court, &c., whereby the bond came to the use of the plaintiff, and not otherwise; wherefore the defendant prays judgment of the said Flagg, his action aforesaid ought to have and maintain, &c.
    To this plea the plaintiff demurred, and the defendant joined in demurrer.
    
      S. P. P. Fay, for the defendant,
    argued that this bond being part of the legal process of replevin, if the officer executes the pre cept committed to him contrary to the law, and to the exigency of the writ, the bond ceases to bind the party making it. The whole intent and purpose of the bond was to authorize the coroner to make a due and legal service of the writ of replevin, but not an illegal and unauthorized service.
   Curia.

The execution of the bond is admitted, and the bar does not show a performance of the condition, or a release of it, or any illegality in the consideration. The substance of the bar is that the coroner made the replevin against law, Neal not having a right to sue this writ against Flagg, because Flagg had attached the goods as Neal’s in a suit against him. On the facts disclosed by the plea, the coroner ought not to have made the replevin, and the attorney, who granted the writ, if he was privy to all these facts, acted very improperly. The bond is on condition that Neal should prosecute his replevin to final judgment, pay the damages and costs, and return the goods, if judgment should be against him. The writ was in fact served, and the goods were replevied and delivered to Neal; and the condition has not been performed. Now, it is manifest that Neal, the principal, cannot be admitted to say in his defence, that he sued his writ against law, and that his directions to the coroner, and his obedience to them, were unlawful.

If, therefore, Neal is answerable on his bond, so must his surety be, who voluntarily executed the bond, that Neal might obtain the goods, and who agreed to be responsible, if the action was not prosecuted, and a return made, if judgment should be rendered for a return. And that the defendant in replevin may have the remedy intended by the statute * in directing the [ * 305 ] bond, if the goods are in fact replevied, and taken from his custody, whether by right or by wrong, and he has a judgment which is not satisfied, or if the plaintiff in replevin fail to prosecute, the obligors are answerable on their bond.

Ward, for the plaintiff.

The plea in bar is bad, and the plaintiff must have judgment . 
      
       [Vide Flagg vs. Tyler, 6 Mass. 33.—Wheeler vs. Train, 4 Pick. 168.—Ed.]
     