
    Lecky against M‘Dermot.
    Saturday, September 25.
    The want of a plea in replevin is error: and is not cured by the parties having given bonds to the sheriff and a trial on the merits.
    In Error.
    REPLEVIN, in the Court of Common Pleas of Aliegheny county, brought by M'-Dermot against Lecky. The sheriff returned the writ executed, by taking bonds from the . J ° plaintiff and defendant. The parties appeared, and went on to trial, but no plea was put in by the defendant. A verdiet was given for the plaintiff, and the Court below refused , , to arrest the judgment.
    Shaler, for the plaintiff in error,
    relied on the want of a plea, as error.
    
      M'Donald, for the defendant in error,
    argued, that the defendant’s giving bond to the sheriff, was a claim of property, and was tantamount to a plea: and that the Court ought not to reverse the judgment after a trial on thé merits, for an error occasioned by the defendant’s own neglect. He cited, N. Y. Term, Rep. 174. Cole & Caines’ Cas. 61. 1 Serg. & Rawle, 435. Str. 973.
    Tilghman C. J. sick and absent.
   Per Curiam.

The furthest this Court has gone, was, where there was a plea with an entry of the usual memorandum, “ and issue.” This was held to be equivalent to a direction to the clerk, to join the issue formally; and the omission, being of a clerical nature, was cured by the verdict. But even the want of such a memorandum would be fatal; much more so, where there is no plea, which nothing can cure.

Judgment reversed.  