Gardiner v. McDermott

MattesoN, J. This is an action of debt on a replevin bond. The defendant McDermott replevied from the plaintiff, a deputy sheriff, certain goods and chattels attached by the latter, and in his custody, as the property of one Patrick O’Grady. Prior to the service of the replevin writ, the officer charged with its service took from the defendant McDermott the bond in suit, signed by him as principal and by the defendant Durfee as surety, with condition, as required by statute, 1 to prosecute the writ of re-plevin to final judgment and pay such damages and costs as the defendant in such writ should recover against the plaintiff therein, and also to return and restore the goods and chattels replevied in like good order and condition as when taken, in case such should be the final judgment on such writ. The defendant McDermott did not, nor did any one in his be *207 half, enter his writ of replevin in the Court of Common Pleas, to which it was returnable, and prosecute it to final judgment, nor did he, nor any one in his behalf, restore the goods and chattels replevied to the plaintiff. The plaintiff brought suit upon the bond, and the jury returned a verdict for the plaintiff on the first count in his declaration, which assigned, as breaches of the bond, the neglect to enter and prosecute the writ of replevin to final judgment, and the neglect and refusal to return and restore the goods and chattels replevied to the plaintiff. The defendants thereupon moved in arrest of judgment upon several grounds, the last of which, and the only one urged at the hearing, was that the count contained no allegation that the plaintiff had ever obtained a judgment for the return and restoration of the goods and chattels replevied. Gen. Stat. R. I. cap. 224, § 5, provides, that “ whenever any plaintiff in replevin shall neglect to enter and prosecute the suit, the defendant may upon complaint have j udgment for a return and restoration of the goods and chattels replevied, and reasonable damages for the taking, with such reasonable costs as may be adjudged by the court, and a writ of return and restoration thereon accordingly.” The defendants contend, that if the plaintiff in replevin neglects to enter and prosecute his suit, the defendant therein must file a complaint and obtain a judgment under the section of the statute quoted before he can maintain a suit upon the bond, or, in other words, that such a judgment is a condition precedent to the maintenance of a suit upon the bond. We do not think that the allegation that the plaintiff had obtained a judgment for a return and restoration of the property replevied was essential. Two breaches of the bond are alleged: 1. The neglect to enter and prosecute the suit to final judgment. 2. The neglect and refusal to return and restore the goods and chattels replevied. If either of these is sufficient to render the defendants liable, it is immaterial whether or not the other is well assigned. Perhaps if the only breach alleged had been a neglect to return the goods and chattels, the obtaining of a judgment for such return, and an allegation to that effect, would have been requisite. That question, however, it is not necessary to determine, for the neglect to enter and prosecute the suit is *208 also averred, which is a distinct and complete breach of one part of the condition. The several requirements of the condition of a replevin bond are to be regarded as distinct and independent conditions, and a breach of either is a forfeiture of the bond. Morgan v. Griffith, 7 Mod. 380; Perreau v. Bevan, 5 B. & C. 284, 300, 302; Gibbs v. Bartlett, 2 W. & S. 29. 33 ; Persse v. Watrous, 30 Conn. 139, 146. And see also Dias v. Freeman, 5 Term Rep. 195, 197 ; Gwillim v. Holbrook, 1 Bos. & Pul. 410 ; Turner v. Turner, 2 Brod. & B. 107, 111; Ex parte Boyle, 2 Dowl. & Ry. 13, 14 ; Axford v. Perrett, 4 Bing. 586 ; Harrison v. Wardle, 5 B. & Ad. 146 ; Lindsay v. Blood, 2 Mass. 518; Smith v. Whiting, 100 Mass. 122, 123. Nor do we think that it was obligatory upon the plaintiff to make complaint and obtain a judgment for a return under the statute, before bringing suit upon the boud. The case chiefly relied upon by the defendant is Pettygrove v. Hoyt, 11 Me. 66, 69. In that case the condition of the bond and the statute, so far as it related to a judgment for a return, were the same as in this. The defendant Hoyt, the plaintiff in replevin, had neglected to enter and prosecute the suit. Pettygrove, the plaintiff, and the defendant in replevin, had filed a complaint under the statute in which he did not pray for a return, but prayed and had judgment for costs only, which had been satisfied. The court, though admitting that the failure fo enter and prosecute the replevin suit was a breach of the bond, held that the action could not be maintained. They seem to have regarded the bond as given merely to secure to the defendant in replevin execution of the judgment which he might recover against the plaintiff, thereby necessarily implying that a judgment must be obtained before a suit upon the bond can be maintained. They seem also to have been of the opinion, that as the judgment and the execution thereon would be sufficient to compel the plaintiff to do justice if he had property to pay damages and costs, and to obtain a return and restoration of the property, if not eloigned, the remedy by statute must first be exhausted, and that the bond was to be resorted to only in case of the'plaintiff’s failure to obtain a satisfaction of the judgment by the statutory process. The only cases in which the views of the court in Pettygrove v. Hoyt have been recognized, or approved, which have come to *209 our notice, are Smallwood v. Norton, 20 Me. 83, 88, and Collamer v. Page, 35 Vt. 387, 396. We cannot assent to them. It seems to ns that tbe purpose of tbe bond is not merely to secure to tbe defendant tbe execution of tbe judgment wbicb be may recover, but that it is intended ratber as an indemnity to tbe defendant for tbe taking of tbe property from bis possession. Roman v. Stratton, 2 Bibb, 199; Smith v. Whiting, 97 Mass. 316, 818. Again, to bold tbat tbe bond is intended merely as security to tbe defendant for tbe execution of tbe judgment, is to ignore wholly tbat part of tbe condition wbicb requires the plaintiff to prosecute his suit to final judgment. Beach Osfield, for plaintiff. Charles M Grorman, for defendant. It seems to us, also, tbat tbe court in Pettygrove v. Hoyt, 11 Me. 66, entirely misapprehended' tbe purpose of tbe statute. But for tbe statute, if the plaintiff in replevin neglected to enter bis suit, the defendant would be without the means of recovering tbe property taken from him on the writ. The court could render no judgment for a return, nor issue any process to compel it. Tbe only remedy wbicb tbe defendant would have would be upon tbe bond for damages. The purpose of tbe statute was to give to him tbe same process for tbe recovery of bis property wbicb be would have bad if tbe plaintiff bad entered his writ in court, as.was bis duty, and bad then abandoned its prosecution, or prosecuted it to final judgment without success. It was intended, not for tbe benefit of tbe plaintiff in replevin or bis sureties, but for tbe benefit of tbe defendant. It does not in any way impair his remedy upon the bond, but gives him a new and additional remedy, wbicb it is optional with him to pursue or not, as be shall prefer. Tbe motion in arrest is overruled, and judgment will be entered for tbe penal sum of tbe bond in accordance with the statute. Motion dismissed. Footnotes [1] Gen. Stat R. I. cap. 224, § 3.