Adler v. Potter

BRICKELL, C. J. 1. The bond was very unskillfully drawn, and is variant from the statute directing the mode of' replevying property, on which an attachment is levied, in several necessary constituents. It could not, therefore, operate as a statutory bond, on which execution could issue against all the obligors, for the amount of the judgment and costs, if the property levied on was not returned within the time expressed in its condition. The bond is nevertheless •valid as a common-law obligation, supported by the consideration, that the property levied on was withdrawn from the possession of the officer making the levy, and delivered into the possession of the obligors. 2. The recitals of the attachment, and its levy, are not of matters of substance, but of matters of inducement, showing the consideration of the bond. Mistakes in these recitals will not vitiate the bond, for they are not an essential part,, and refer to extrinsic matters, which parol evidence may supply or correct.—Tallmage v. Richmond, 9 Johns. 85; Meredith v. Richardson, 10 Ala. 828; Mitchell v. Ingram, 88 Ala. 325. 3. The bond is payable to the appellee, and purports to be given for the replevy of property levied on by an attachment, in which he was plaintiff. We can discover no objection to parol evidence, identifying the particular writ to which the bond refers. No term of the bond is added to, or qualified, or varied. The general terms, that the attachment [574] was at the suit of the appellees, are simply rendered certain. The loss of the attachment was shown, and the secondary • evidence of its contents was admissible. 4. If there was a variance between the property described as having been levied on, and the indorsement of the levy on the attachment, it was immaterial, as the obligors, in bonds of this character, are not allowed to take advantage of .such defects.—Anderson v. Rhea, 7 Ala. 104. Nor was it any inquiry in this suit, whether the levy of the attachment was rightful or wrongful. The obligors in the bond are -estopped from disputing the levy, and the liability of the .property levied on to seizure.—Mead v. Figh, 4 Ala. 279; Easley v. Walker, 10 Ala. 671. 5. It is a statutory bond only, that imposes on the obligors, liability for the amount of the judgment in the attachment suit, without regard to the value of the property replevied. That obligation results from the express terms of the statute, prescribing the penalty and condition of the bond, and if the statute was silent in this respect, the extent of the obligation of the bond would be the damages the plaintiff had sustained, the value of the property replevied, if that did not exceed the amount of the judgment. As we have said, this is not a statutory bond, and is valid and operative only as a common-law obligation. The measure of recovery is consequently the value of the property replevied at the time it was seized, or at the time it should have been delivered, in compliance with the conditions of the bond. The court erred in adjudging the amount of the judgment, was the measure of the •recovery, and rendering judgment therefor without evidence that the value of the property equalled, or exceeded, the judgment. The error compels a reversal. Let the judgment be reversed, and the cause remanded.