
    George Fitzgerald versus John Hart and George Doggett.
    A plea in bar to an action of debt on bond, which admits the plaintiff’s right to part of the debt, is bad.
    Debt on bond. Upon oyer of the bond and condition, viz., “ The condition of the above-written obligation is such that whereas this day said Hart has replevied all the right which one William Bodjish formerly owned in 550 spruce logs undivided : now, if said Hart shall prosecute said replevin against said Fitzgerald to final judgment, and pay such damages and costs as the said Fitzgerald shall recover against him, and also return and restore the same goods and chattels in like good order and condition as when taken, in case such shall be the final judgment, then this obligations be void, otherwise in force ; ” the defendants say that the plaintiff ought not to-have and maintain his action, except for the sum of forty-three dollars and seventeen cents; because they say that, after making the said obligation, the said Hart entered his said action at the Court of Common Pleas ; whereupon such proceedings were had that judgment was rendered by said court that the defendant should recover bis costs against the said Hart, from which judgment the said Hart appealed to the next Supreme Judicial Court for said county, where, after sundry continuances, the said Fitzgerald pleaded in substance that the said * goods and chattels were not the property of the [*430 ] said Hart, as set forth in his said writ, but the property of some persons not named therein, whereupon issue was joined, and verdict returned that the goods and chattels replevied were the property of the said Hart. The plea then alleges that judgment on the said verdict was arrested, and that Fitzgerald recovered his costs taxed at the said sum of forty-three dollars seventeen cents. But the said Court did not order a return of the goods or chattels replevied ; and this they are ready, &c., and they pray judgment if the plaintiff shall have and maintain his action, except as to the said sum of forty-three dollars and seventeen cents, costs as aforesaid; and as to that sum, they have nothing to say why judgment should not be rendered against them- for the same.
    To this plea the plaintiff demurred generally, and the defendants joined in demurrer.
   Per Curiam.

The defendant, in his plea, admits that the plaintiff has a right of action to recover forty-three dollars seventeen cents, and yet his plea goes to the action. Clearly it is bad. His defence is in equity, where the penalty will be reduced to the sum justly due.  