delivered the opinion of the court:
It is not disputed that the sheriff had full authority to satisfy the judgment of the brewing company from the proceeds of the goods taken by him under the first execution, notwithstanding the issuing of the alias writ, and that it was his.duty to do so. The sole contention of the appellant is, that the above quoted averment in the plea setting forth the issuing of the alias execution to defendant, and his alleged action thereunder, clearly import an abandonment of the lien created by the levy made under the first execution. This position can hardly be insisted upon. Two grounds of defense, each a complete bar to the plaintiff’s right of action, are set forth in the special plea and relied upon by the defendant, namely: First, his right to take and hold the goods under the writ first issued to him, upon which he acted; and second, his right to do so under the alias execution. The plea is subject to the objection of duplicity, but it cannot be said that the averment of the second ground of defense purports to be an abandonment of the first. The sheriff at no time surrendered up possession of the goods and then retook them under the second execution, nor is this averred. His right to hold the goods under either of the executions was set up in the plea, and both grounds were directly in issue under the pleadings. On the trial the first ground of defense was not disputed, no evidence being introduced by the plaintiff to contest it. That defense was complete, and fully warranted the court in finding for the defendant.
An objection that the special plea presented two complete defenses to the cause of action set forth in the declaration could have been raised by special demurrer, but the plaintiff saw fit to plead to it and go to trial. He thereby waived the objection.
We think the judgments of the circuit and Appellate Courts are right, and the judgment of the latter court will be affirmed.
Judgment affirmed.