The defendant sued out a writ of replevin by virtue of which certain specified property was taken from the possession of the plaintiff, without filing the bond required by statute. The service not being completed, the complainant files his com*535plaint, praying that McGlinchy may be required to file in court a true copy of the writ by him sued out, and for judgment against him for costs, and for a return of the goods and chattels taken upon said replevin writ.
As the plaintiff lias never been summoned to appear at any term of this court, there was no reason why he should so appear.. He is not entitled to costs for not appearing where he was not required to be. In Hodge v. Swasey, 30 Maine, 162, the defendant sued out a writ of attachment under which the complainant’s property was taken, but the service was not completed by leaving a summons. The defendant in the original suit procured a copy of the writ upon which his property had been attached, and entered his complaint for costs, which the court denied to him, but allowed to his opponent. The same question arose in Chadbourne v. Lancaster Bank, 24 N. H., 333, and a similar decision was made. The complainant is not entitled to costs.
As the complainant was in possession of the intoxicating liquors replevied by him as a deputy sheriff, by virtue of a warrant issued from the municipal court of the city of Portland, upon their search and seizure the action against him was prohibited by statute. R. S., c. 27, § 43.
Further, the officer, without the statute bond, was not legally authorized to commence the service of his writ, and having never completed any service it can afford him no protection. He is a mere trespasser. A writ of replevin cannot be legally served before the plaintiff gives the bond required by statute. Baldwin v. Whittier, 16 Maine, 33. Trover may be maintained in such case,, when the service is not completed. In Purple v. Purple, 5 Pick., 226, the officer was held to be a trespasser because he took the bond -running to himself, and not to the defendant in replevin. The defendant, by whose direction these unlawful acts were done, is equally liable as the officer.
. The defendant, being a trespasser, is situated like other trespassers. If he had seized the property taken without any writ, the person from whom it was so taken could not have claimed the intervention of this court to order its return. Neither can the com*536plainant do this. The defendant has no precept under which he can justify. He is in no better condition than if none had issued.
The complainant has the same legal remedies as any other party upon whom a trespass lias been committed. He asks for a return of property upon a writ which was never served upon him, never entered in court, and upon which there can have been no order or adjudication as to the rights of the parties. He is not legally entitled to such return, and must resort to such remedies as the law affords for redress. The legal rights of parties are the same, irrespective of the subject matter to which the trespass relates, unless modified by special legislation, and there is none applicable to the present case. Complaint dismissed with costs.
Walton, Dickerson, Barrows, Daneorth and Virgin, JJ., concurred.