
    Magill v. Casey.
    In the Court below,
    James Casey, Plaintiff; Arthur Magill and Stephen Clay, Defendants.
    
    Former action, on a replevin bond, which Was adjudged void, no bar to an action on the case, for taking goods, which plaintiff had attached, out of the custody of the law, thereby destroying his lien, and defeating him of re-coven: debt.
    T. HE declaration stated, that Casey prayed out a writ of attachment against Thomas Leverett, and attached his goods ; that Magill &P Clay procured a writ of replevin to issue, in the name of Leverett, and connected therewith an action of trespass against Casey, in their favor, in which they alleged the goods to be their property ; that they gave bond thereon to satisfy such damages as the adverse party should recover against them ; that the sheriff, by the direction of Magill Clay, took the goods, on the writ of replevin, out of the custody of the law, and delivered them to Leverett, whereby Casey’s lien upon them was dcstroved ; that Magill &? Clay pursued their action t© trial; that the only question in the case Was, whether the goods, when attached, - were their property, or Leveret?s ; and, that a verdict was found, and judgment rendered, against them : That Casa/s action against Leverett proceeded to final judgment; that execution issued ; and that a 72on est inventus was returned.
    1802.
    To this declaration there was a plea in bar, that Casey had previously brought an action of debt on the bond against Magill '&? Clay ; that on trial to the jury, on the general issue, the former proceedings, which were ; set .forth at large, was the only evidence adduced ; that there was a demurrer to this evidence, and the jury discharged ; and, that the Superior Court adjudged, [on the ground that the bond was void] that the evidence was insufficient to maintain the issue, and final judgment was rendered accordingly.
    To this plea there was a demurrer; and judgment, that the pica was, insufficient.
    The general error was assigned.
    Huntington, (of Middletown) for the plaintiffs in error,
    contended, that every fact appeared on the former declaration, which appears on this ; and that, if the plaintiff had merits, the Court would have adjudged to him hi a damages, in that action.
    
      Daggett and Russell, for the defendant in error,
    urged, that in tiie former suit, the replevin bond-was treated as of force,and the action veas debt; that no averment was made, that Magill Clay did any act, except give the bond; that, in this declaration, it was averred, that Magill £s? Clay had procured the writ of replevin t©, issue., and. directed the sheriff to take the goods out of the custody of the law, which had destroyed the plaintiff’s lien, . "" and defeated him ol recovering his debt.
   By the Court,

three Judges dissenting,

The judgment was affirmed.  