Carter v. Duggan

Morton, C. J. None of the exceptions taken by the defendant can be sustained. 1. The officer who serves a writ of replevin is required by statute to return the bond taken by him with the writ to the court to which the writ is returnable. Pub. Sts. c. 184, § 12. Gen. Sts. c. 143, § 12. The production of the writ with his return thereon, and of the bond with his acceptance thereon, is sufficient proof of the execution of the bond, and that he accepted it as sufficient. His return is conclusive upon him, and it was not necessary for the plaintiff in this case to prove the signatures to the bond by the attesting witness, or to offer further proof that the defendant accepted the bond. 2. To prove the insufficiency of the bond, it was competent for the plaintiff to show that he had brought suit upon it, and had been unable to realize anything from the suit. For this purpose, the record of the suit and the return of the officer upon the execution which issued in it were admissible. West v. Rice, 9 Met. 564. The fact that the execution had not been returned into court did not make it incompetent. 3. The testimony of Knapp that he could find no property of the principal or sureties on the bond, and that they were worthless, was competent. It had some tendency to show that they were insufficient when the bond was taken. West v. Rice, ubi [35] supra. It was also important on the question of damages, for, if they were able to respond to this execution, it is difficult to see how the plaintiff would sustain any loss by reason of their previous insufficiency. 4. The measure of the damages which the plaintiff is entitled to recover is not the value of the property replevied, but is the amount he has lost by reason of the misdoing of the defendant in accepting insufficient sureties. The amount which he recovered in his suit upon the bond was, therefore, admissible in evidence. Exceptions overruled.