
    Joseph Moors versus Samuel Parker &. Al.
    A justification, in trespass for taking and carrying away the plaintiff’s goods, under a writ of replevin, must allege that a bond was given pursuant to the statute; and that the goods were not detained upon mesne process, Sz.c.— Where several defendants join in pleading in bar, if the plea is bad as to one defendant, it is bad as to them all.
    This was an action of trespass for taking, carrying away, detaining and converting certain goods and. chattels of the plaintiff.
    The defendants jointly plead the general issue, which is joined by the plaintiff. They also plead jointly in bar to all the trespass, but the force and arms and whatever is against *the [ * 311 ] peace. The material facts alleged in the bar are, that the goods were the property of Parker, one of the defendants; that he sued out a replevin directed to a coroner (the plaintiff being a deputy sheriff) to replevy the goods, which writ is described to be of the form required by the statute; that the coroner replevied the goods, and delivered them to the said Parker, and to the other defendants, who acted as his servants and at his request.
    To this plea the plaintiff demurs, and assigns for causes of demurrer, 1. The plea does not contain any answer to the force and arms, &c. 2. It is not alleged that Parker gave any bond to prosecute his writ of replevin, &c. 3. It is not alleged that the goods at the time when, &c. had not been taken as the property of the said Parker upon mesne process, by warrant of distress, or in execution. 4. The plea is double, as it sets forth two distinct matters in bar, viz. property in the goods in the said Parker, and the process of law, viz. a writ of replevin, by which the defendants pretend to have taken the same goods. 5. The plea amounts to the general issue.
   Parsons, C. J.,

recited the substance of the declaration and plea, and added:—Among the causes of demurrer, there are two which go to the substance of the bar, and two which go to the form.

The first cause is, that there is no allegation that the coroner had taken a replevin bond in the form prescribed by law, without which bond the coroner himself could not justify the delivery of the goods; the bar only recites the return, in which he says, “Having taken the bond, which I return,” without adding any description of the bond.

The second cause is, that the plea in bar does not allege that the goods were not detained upon mesne process, &c., as the property of Parker, the plaintiff in replevin.

For each of these causes the plea is bad in substance. A plaintiff in replevin cannot protee* nimself, by the execution of his writ, unless the officer pursue the authority, which he derives only from the writ. The authority to the officer to replevy and [ * 312 ] deliver the goods to the plaintiff is conditional. *The plaintiff must first give him a bond, with sureties, in the penalty,"and with the condition required by the writ. And if the plaintiff give him this bond, yet the goods are irrepleviable, if they are detained as the plaintiff’s on mesne process, warrant of distress, or on execution ; and if the officer should deliver goods so detained, he will be a trespasser, the writ being no justification for him. The defendant, therefore, ought to have alleged in his bar, that before the delivery he had given the coroner the bond required by his writ and also that the goods were not so detained as to be irrepleviable by that writ. But neither of these allegations are made, and the bar is an insufficient justification or excuse for Parker; and if several defendants join in pleading in bar, if the plea is bad as to one defendant, it is bad as to all the defendants.

Bigelow, for the plaintiff.

Dana, for the defendants.

The two causes of demurrer, which go to the form of the plea, are, 1. Duplicity, because the allegation that the goods, at the time of the taking, were the defendant Parker's, is prima facie a good defence, without justifying under the replevin. And, 2. That the plea amounts to the general issue, because it is a direct denial of taking the plaintiff’s goods.

There seems to be weight in each of these exceptions; but it is unnecessary for the Court to give any opinion upon them.

Sew all, J., and Parker, J., concurred.

Sedgwick, J.,

gave no opinion, observing that, not having beei furnished with copies of the pleadings, he had had no opportunity of considering the case .

Plea in bar adjudged bad. 
      
      
        [Cushman vs. Churchill, 7 Mass. 97.—Morse vs. Hodgson, 5 Mass. 314.—Cody vs. Eggleston, 11 Mass. 282.—Ed.]
     