
    James McArthur vs. Thomas K. Lane.
    It is good cause for the abatement of a writ of replevin, that at the time of the taking by the defendant, the chattels were the joint property of the plaintiff, and of another person.
    If the plea in abatement contain no prayer for a return of the property replev-ied, still a return may be ordered on a written suggestion, that the property was attached by the defendant as an officer, and that he is still responsible for its safe keeping.
    But when the return is ordered on such suggestion, no damages can be allowed.
    RepleviN for a quantity of board logs.
    The plea in abatement was filed at the term at which the action was entered; the demurrer was put in at the next succeeding term; and the suggestion for a return was made at the next law term, when the case stood for argument. The case is sufficiently understood from the opinion of the Court.
    
      McArthur, for the plaintiff,
    cited Gould v. Barnard, 3 Mass. R. 301.
    
      Bradley, for the defendant,
    cited Quincy v. Hall, 1 Pick. 360.
   The opinion of the Court was drawn up by

Shepley J. -

'The plea in abatement, alleges the property at the time of taking to have been jointly in the plaintiff and another. The objection to the plea is, that it would be sufficient for the plaintiff to prove property in himself at the time of suing out the writ. But the settled rule seems to be, that it must be at the time of the taking. Co. Lit. 145, b. As the property was then in the plaintiff and another, the plea in abatement is good. Hart v. Fitzgerald, 2 Mass. R. 509.

The plea contains no prayer for a return of the property; but a petition is filed and a suggestion made, that the property was attached by the defendant, as a sheriff, by virtue of a writ against the joint owner other than the plaintiff; and he prays for a return, that it may be held to respond that attachment. If it did not appear, that the defendant had a legal right to have possession, a return would not be awarded. Gould v. Barnard, 3 Mass. R. 201. The defendant might lawfully attach the share of the other joint owner, and having done so, is entitled upon his petition and suggestion to a return of the property. Quincy v. Hall, 1 Pick. 360. But no damages can be allowed, as there is no issue upon which they can be estimated.

Writ abated. Judgment for a return, and costs without damages.  