The opinion
Shaw, C. J.
It is very clear that this case is not rightly before this court, by bill of exceptions. Nor could it be brought up by appeal. St. 1840, c. 87, §§ 4, 5. In allowing bills of exceptions, and appeals, founded on matter of law apparent on the face of the record, judgments founded on oleas in abatement are expressly excepted.
It was argued, however, that a distinction may be taken, that here an issue in fact was joined and tried. But that can *172 make no difference. The judgment must he that the writ be or be not abated, and therefore is founded on the plea.
It was intimated, as another distinction, that, in this case, the bill of exceptions embraced partly matter of fact and partly law. If it was so, it is quite certain that the exceptions were irregularly taken, and improvidently allowed; and any appeal, in such case, without reference to its being on a plea in abatement, is prohibited by the St. 1840, c. 87, <§> 4. The exceptions are overruled, and the cause remanded to the court of common pleas.
[After this action was tried in the court of common pleas, it was decided, in Browning v. Bancroft, 5 Met. 88 , that a sheriff is not so interested in an action of replevin brought against his deputy, for property attached by him, as to authorize á coroner, under Rev. Sts. c. 14, •§> 97, to serve the writ of replevin on the deputy.]