Lindsay v. Blood

2 Mass. 518 | Mass. | 1807

By the Court.

Without considering the merits of the replication, the plea in bar is clearly bad. One part of the condition of the bond is that the defendant, who was the plaintiff in replevin, shall prosecute his replevin to final judgment. In this bar he does not allege that he prosecuted his replevin, nor does he plead any excuse or justification for not doing it. Indeed, from the replication, which in this action he has demurred to, it appears that he did not prosecute his replevin to final judgment, but that the defendant in replevin obtained judgment on complaint filed.

As the defendant’s bar is bad, judgment must be rendered that the replication is a good and sufficient answer to it. ^(a)

(a) Sevey vs. Blacklin & Al. post, 541.