Appeal from Johnson Circuit Court.

This- was an action of trespass by Newman McGee against William Overby, Daniel J. Matthews, and Lemuel Ii. Matthews, determined in the Johnson Circuit Court, at the September term, 1850, before the Hon. W. W. Floyd, Judge.

There were two counts in the declaration. The first charged that defendants, on the last day of January, 1850, at, &c., with force and arms, toolc the brown black mule of said plaintiff, of great value, to wit: of the value of f 125, and carried the same off, and converted it to their use, &c.

The second count was the same as the first, except that it charged the trespass to have been committed on the last day of March, 1850, instead of the last day of January.

The defendants filed a special plea, as follows :

“ Defendants come, áre., and say actionem non, because they say that, heretofore, to wit: on the first day of June, A. D. 1850, at, &c., they, the said defendants, took the said mule, in the said plaintiff’s declaration mentioned, out of the possession of him the said plaintiff, and afterwards, to wit: on the day and year aforesaid, at the county aforesaid, they, the said defendants, sold the said mule to one Absalom B. Joiner: and, the said defendants further aver that, afterwards, to wit: on the day and year aforesaid, the said plaintiff commenced his certain action of re-plevin in the dctinct against the said Joiner for the recovery of the same mule in the said declaration mentioned in the Circuit Court of said county of Johnson; and that afterwards, to wit: on the 4th day of September, 1850, and at the September term of said Court in that year, such proceedings were had in the said action of replevin, that the said plaintiff, by the consideration and judgment of our said Circuit Court, recovered judgment against the said Joiner for restitution of the said mule, and for the sum of six dollars and fifty cents for his damages, caused by the detention of said mule, together with all his costs in that behalf, laid out and expended, as by the record and proceedings thereof remaining of record in our said Court appears. And the said defendants further aver that the said plaintiff’s action of trespass and the said action of replevin, wherein a recovery was had as aforesaid, were simultaneously instituted, the one for the taking and the other for the detention of the same mule, and so the said defendants aver that the said plaintiff hath, in his said action of replevin, recovered against the said Joiner, his damages by him sustained by reason of the several supposed trespasses in his said declaration set forth; and this, they are ready to verify, &c.

To this plea, plaintiffs demurred on the grounds: 1st, that the recovery set up in the plea was for the detention of the mule, whilst the present action was for the original taking: 2d, that it was not shown by the plea that Joiner was a joint trespasser with defendants in taking said mule, &c.

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