Replevin. The defendants avow the taking, because the goods were the property of one A. Ray, against whom one of them had a judgment, and the other an execution as a constable; and they say actio non, because the property of the goods was in A. Ray, and not in the plaintiff General demurrer to the plea, and judgment for the plaintiff.

The defendants, in this case, have improperly- crowded Into *292their defence two distinct grounds for resisting the plaintiff’s suit. The one is a justification, because of a judgment and execution against a third person, said to be the owner of the goods. The othér is simply a plea of property in a stranger. If the defendants wished to rely upon these two distinct matters of defence, they should have made them the subject of two distinct pleas. Several pleas in replevin, as in other actions, are allowed by the statute of Anne. Lawes, 82. So in New-York. 14 Johns. R. 84. The spirit of our statute warrants the same practice. The objection here is, not that these matters of defence cannot both be pleaded, but that they must be distinctly and severally pleaded. That, however, is an objection not to the substance, but to the form of the plea, and although well founded, should have been taken advantage of by a special demurrer. 5 Bac. 444.

The avowry, as an answer of itself to the declaration, is bad, for not showing any right under the execution to take the property, But that part of the defence, contained in the plea, of property in a stranger, is conceived not to be liable to any objection. It is a good bar to the action, for it shows that the ’ possession was illegally taken from the defendants by the replevin, and that they had, therefore, a right to a return of the property. Harrison v. M'Intosh, 1 Johns. R. 380. When the property can be shown to be out of the plaintiff, it is well settled by authority, that he cannot recover in the action of replevin. The plea in such case goes to the point of the action, and entitles the de» fendant to a return, without avowry. Butcher v. Porter, Salk. 94 (1).

The plea before us, therefore., contains matter substantially well pleaded, sufficient to destroy the plaintiff’s action. The demurrer should have been overruled.

The judgment is reversed, and the proceedings subsequent to the joinder- ip demurrer are set aside, with costs. Cause remanded, &c.