¶1This was an action of replevin by Dunn, marshal of the town of Lawrenceburgh, against Fitch, for taking an ox-cart, &c. The defendant pleaded three pleas in bar:— 1st, the general issue of non cepit; 2dly, property in himself and C. Fitch; 3dly, that the plaintiff was not marshal, &c.
¶2To the 2d plea, the plaintiff replied specially as follows: that the president, &c. of Lawrenceburgh, having authority, &c. caused to be issued a duplicate of an assessment of the lots, &c. together with the amount of taxes assessed, &c.; and also caused to be issued a warrant, &c. directed to the plaintiff as marshal of the town, commanding him to collect the taxes, &c.; that, on, &c. the plaintiff was marshal of the town, &c.; that the defendant and C. Fitch stood charged, &c.; and that the plaintiff, by virtue of the duplicate, &c. took the cart to satisfy the taxes, &c. A general demurrer was filed to this replication. The Circuit Court overruled the demurrer, and rendered a final judgment against the defendant for nominal damages and the costs of suit.
¶3The plaintiff in error has not pointed out any' particular objection to the replication demurred to. It appears to us to be good. The marshal in this case, like a sheriff who has taken goods on execution, has a sufficient property to maintain the action of replevin. But the overruling of the demurrer to this replication to the second plea, did not settle the case against the defendant. It only disposed of the second plea. There were two other pleas in bar filed by the defendant. It was necessary that they also should be disposed of, before the plaintiff could have final judgment. The final judgment, in this case, is therefore erroneous, and must be reversed.
¶4The judgment is reversed with costs. Cause remanded, &c.