Opinion of the Court.

their legal interest were joint, they must all, if living, join in the action, in form ex contractu, for the breach of it, though the covenant or contract with them was, in terms, joint and several." 1 Chit. Pl. 8; Eccleston v. Clipsham, 1 Saund. 153, n. 1; Hatsell v. Griffith, 4 Tyr. 487; Bradburne v. Botfield, 14 Mees. & Welbs. 559.

Here the legal interest is unquestionably joint; but the fourth; fifth and sixth breaches assigned set out an injury and cause of action accruing to Miller alone, in respect to which his co-obligee has no legal interest, and neither of which is within the words, import or effect of the condition. "When the legal interest and cause of action of the covenantees are several, each may and should sue separately for the particular damages resulting to him individually, although the covenant be, in its terms, joint. And it is improper, as well in equity as at law, for a party to be joined in a suit who has neither legal nor beneficial interest in the subject matter. Thus, if A, by indenture, demise Blackacre to B and Whiteacre to C, and covenant with them and each of them (or it seems if he covenant with them in express terms jointly) that he is the owner of the closes, each should sue separately in respect of his distinct interest, and they can not jointly sue, for they have no joint or entire interest in same subject matter." 1 Chit. Pl. 10.

It follows, from the principle of these rules of the common law, that, in an action by two obligees upon a bond for the performance of covenants, wherein the legal interest of the obligees is joint, a count, or assignment of breaches, for particular damages resulting to one of the plaintiffs individually, is bad in substance; and where some of the assignments of breaches are for damages resulting to both plaintiffs, one for damages sustained by one plaintiff, and another for damages sustained by the other, as to which his co-plaintiff has no interest, there is a misjoinder of counts, and if entire damages be given upon all the counts, the judgment will be reversed upon error. 1 Chit. Pl. 205, 411.

Opinion of the Court.

The assignment of breach, to which the fourth plea was pleaded, being for damages resulting to one plaintiff individually, was, therefore, bad in substance, and it was error to sustain the demurrer to that plea. The sixth, seventh and eighth additional pleas, to which demurrer was sustained, were pleaded respectively to assignments of breaches, for particular damages resulting to Miller alone, and which were also bad in substance. The demurrer was improperly sustained to those pleas, for the same reason.

The true state of the case is simply this: The first assignment of breaches is for damages resulting to both obligees, the second for damages to Miller alone, the third to Cheek alone, the fourth, fifth and sixth to Miller alone, the seventh to both obligees. Hence, the assessment of damages, in order to correspond, must be in three distinct forms: First, to both plaintiffs; second, to Cheek alone; third, to Miller alone. Not only separate assessments, which may be allowable in some cases, but separate assessments in different rights in the same cause, and that an action ex contractu. But here, without a nolle prosequi as to the counts for individual damages, the court assessed entire damages upon all the counts, and gave judgment. This was manifestly erroneous. It may have been supposed that, because the action was brought in the name of both obligees, for the use of Miller, it would not fall within the general rule; but such is not the law. The bond was not assignable at law, and courts of law, so far as the rules as to the parties and procedure are concerned, take no notice of mere equitable interests.

We shall not consider the sufficiency of the other pleas, because they must be regarded as sufficient for a declaration bad in substance.

The judgment of the court below is reversed, the cause remanded, and a repleader awarded. Judgment reversed.

Syllabus. Statement of the case.

THOMAS E. MERRITT et al.

v.

WILLIAM B. EAGAN.

TRESPASS by an officer, in the execution of process of the rights of privies to the judgment. A person who was a silent partner of the plaintiff in an action of replevin, in respect to the goods involved in the suit, purchased his co-partner's interest therein pending the suit, and took the property into his own possession. The action of replevin was dismissed without a trial upon the merits, and a writ of retorno habendo awarded, which was placed in the hands of an officer, who went upon the premises of the party who had thus obtained the possession of the goods, and seized them under the writ: Held, the person from whom the goods were taken under the writ of retorno habendo, in either capacity-as a partner of the plaintiff in replevin, or as his vendee pending that suit-was a privy to the judgment awarding the writ of retorno, and was estopped from asserting his title as against the right of the officer to execute the writ. The officer was not a trespasser in making return of the property.

APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

This was an action of trespass brought in the court below, by William B. Eagan, against Thomas E. Merritt, Samuel R. Carrigan, William R. Hubbard and Charles G. Pearson.

The alleged cause of action, as appears from the declaration, was the breaking and entering the store house of the plaintiff, with force, by the defendants, and taking and carrying away therefrom certain goods and chattels, the property of the plaintiff.

The transaction out of which the suit arose, was as follows: Charles Munger commenced an action of replevin against Charles Dodd and Foster Sutton, in respect to the same property mentioned, which was taken under the writ and placed in the possession of Munger. The action of replevin was dismissed by the plaintiff without a trial on the merits, and a writ of retorno habendo was awarded. Eagan, the plaintiff in

Statement of the case. Opinion of the Court.

this action of trespass, was a silent partner of Munger in the property, and pending the suit in replevin he purchased from Munger his interest therein, and the property was delivered into the possession of Eagan.

The writ of retorno habendo was placed in the hands of the defendant Carrigan, as deputy sheriff, who, with his co-defendants as his assistants, went upon the premises of Eagan and seized the property under the writ, and in this consists the alleged trespass.

A trial resulted in a finding and judgment in favor of the plaintiff for the full value of the property.

The defendants appealed.

Mr. B. B. SMITH, for the appellants.

Mr. HENRY C. GOODNOW and Mr. W. W. WILLARD, for the appellee.

Per CURIAM: The evidence shows, that appellee was a silent partner of Munger, and was interested in the claim out of which an action of replevin originated, in which Munger was plaintiff and Dodd and Sutton were defendants, and which was dismissed, and a judgment retorno habendo was rendered against Munger. Appellee also purchased of Munger his interest in the property whilst the replevin suit was pending. And the property was seized by the sheriff and his posse by virtue of a writ issued under the judgment of retorno habendo. Appellee is estopped to claim the property as against this writ, as the partner of Munger, and as his vendee before its return was adjudged. In either relation he was a privy to the judgment, and is estopped from denying appellants' right to execute the writ. Munger could not have recovered for trespass in executing the writ, and appellee, from his relation to the transaction, can have no higher or better right than Munger had, unless it should be simply for entering his premises, as he was not named in the writ, but such an entry could not entitle him to more than nominal damages, unless more

Syllabus.

force and violence were used than was necessary. See Lear v. Montross, 50 Ill. 507.

Appellee could not show title in himself, so as to render the return of the property under the writ, a trespass. His partner and vendor having obtained the property by replevin, and on the dismissal of the suit a judgment for the return of the property having been rendered against him, he, or his privies, could not resist or evade its return, by claiming to own the property. After its return he might, no doubt, assert title, as though no judgment had ever been rendered. Or, even before a return, he might have instituted proceedings at law for the purpose of establishing his ownership. But he must submit to have the writ executed, and can not treat the officer as a trespasser, simply because he executes the writ, by restoring the property to the person to whom the court had adjudged it should be returned. But if the officer breaks and enters the close of the person who is the owner of the property, and against whom there is no writ, then the officer is liable for that act as a trespass. The jury, in this case, rendered a verdict for the full value of the property returned, and in this there was error, as there was no trespass in taking it under the writ. The judgment of the court below is reversed and the cause remanded.

Judgment reversed.

WILLIAM LAMMERS

ข.

DETRICK R. MEYER.

1. PLEADING—of a plea of justification in replevin. In an action of replevin, a plea of justification, that the defendant took the property by virtue of an execution directed to him as sheriff, averred "that at the time when, etc., to wit, on the 22d day of August, 1870, he was sheriff," etc., "and on the 24th day of May, 1870, at said county, an execution came into