Persse v. Watrous

Butler, J. The claim of the plaintiff in error that the bond described in the declaration was void on its face, is clearly unfounded. It is urged in support of this claim, in the first place, that the condition of the bond, did not require the obligor to prosecute to effect generally, in whatever court the ultimate decision might be had, according to the form prescribed by the statute; but required him to prosecute specially, in a particular way, at a particular time and place, and before a particular magistrate, who had not final jurisdiction in the matter. Where the language of the statute in giving a form is permissive, as it generally is in relation to the various forms of process and recognizance, it is not necessary to follow it strictly. The chapter or title respecting forms in the edition of 1821, had a section expressly providing that “ other and divers forms .than those prescribed might be used, so that the substance of the matter or action be well contained therein according to law.” That chapter was omitted in the revis — 144 — ion of 1849, and tlie forms which it contained were distributed in their proper places in the several acts to which they related. The section authorizing other forms was also omitted ; but the language of the several acts in which the forms are embodied, is such as to show-that it was not the intention of the legislature that the precise .form should be followed, except in relation to oaths, elections, school returns, and in other cases where the nature of the subject requires a strict compliance with the form prescribed. In all such cases the language of the particular act in that respect is imperative. In this case it is clearly permissive, and the substance of the bond, as prescribed in the 261st section of the statute, is “ well contained ” in it. But it is further claimed that the requirement added in this bond is inconsistent with the law, and avoids it, for that the effect of the requirement is to limit the prosecution to the magistrate before whom the writ is returnable, while the law allows an appeal. No such construction can properly be‘ put upon the requirement. The legal import of it is precisely the same as that contained in the form given by statute. The form given in the statute requires him to prosecute to effect, that is to final judgment, and he can not so prosecute, nor at all, without prosecuting before the magistrate, and at the time and place, when and where the writ is returnable. It is therefore wholly immaterial whether the description of the court is omitted or inserted. So the legislature doubtless thought; for the description was contained in the form of 1821, and was omitted in 1849; and other changes of phraseology then made show that it was omitted for the sake of brevity. The description is still retained in the form relative to the replevying of cattle, but it has not we presume been supposed by any one that it operated as a limitation in that case. Indeed, a description of the court where the plaintiff in replevin was to prosecute, was contained in the ancient bonds taken by the sheriffs after the passage of the statute of Marlbridge, and from that time objections like the one under consideration have frequently been made, but as often over-ruled. Blacket v. Crissop, 1 Lutw., 688 ; Butcher v. — 145 — Porter, 1 Show., 400 ; Lane v. Foulk, Comb., 228; Blacket v. Crissop, 1 Ld. Raymond, 278; Gwillim v. Holbrook, 1 Bos. & P., 410. The decisions have been numerous and uniform in England and this country, to the point that the condition to prosecute to effect required the plaintiff in replevin to pursue the action before a higher court, if removed by recordari, on error, or appeal, and by either of the actors in the suit. But it is further said that the bond is illegal because it requires the plaintiff in replevin to return the goods to the officer having the execution “ in said suit,” and that these words refer to the replevin suit. We think the plaintiff in error has misapprehended the declaration. It does not purport to recite the bond in the words of it, but to describe it, and construing the words referred to with that understanding and with reference to the other language used, they clearly refer to the original suit, by which only an execution could be obtained on which the goods could be taken. Indeed the replevin suit as such was not then in existence. The writ only is referred to in the bond, and the execution of the bond was an act precedent to the issuing of the writ. It is claimed in the second place, that the facts averred in the declaration show that the condition of the bond was fulfilled, not broken, inasmuch as the plaintiff suffered no adverse result, and had no judgment of return rendered against him in the suit. The declaration avers that the defendant, having prayed out the writ of replevin, and obtained thereby possession of the goods attached, withdrew his suit before the return day of the writ, and gave the defendant notice of the withdrawal, and no return of the writ was made to the magistrate before whom it was returnable. The writ must be presumed to have been in the hands of the officer, and a withdrawal of the suit before its return implies a withdrawal of the writ from him, or a notice or direction to him not to return it. Upon this state of facts it is claimed that the plaintiff in replevin prosecuted to effect, inasmuch as no adverse result and no judgment of return was had against him. This seems very — 146 — much like claiming to prosecute to effect by not prosecuting at all. The plaintiff in error does not indeed admit that he prevented the return of the writ, but such is the import of the facts alleged, and he claims that the defendant was also bound to see that the writ was returned. It is doubtless true that in replevin both parties are said to be actors. But strictly the defendant does not become an actor until he makes avowry, which is in the nature of a declaration. Until then the entire responsibility of prosecuting is upon the plaintiff. From thence the defendant is also considered as prosecuting for a return, and therefore strictly an actor. But it can not with propriety be said that he is so much an actor from the outset, that it is his duty .to see to a return of the writ. The obligation assumed by the condition of the bond is not single, -but two fold. First, to prosecute, and to effect; and second, to return the goods or pay the value of them, to the extent of the debt and cost, if he does not so prosecute ; and the bond is forfeited by a breach in either respect. Turner v. Turner, 2 Brod. & Bing., 107 ; Perreaux v. Bevan, 5 B. & C., 284; Phillips v. Price, 3 Mau. & Sel., 183. The condition is absolute in its terms, to prosecute, and to effect, and it is a mistake to say that it is fulfilled by prosecuting to a not unsuccessful result. Some of the English judges may have proceeded upon that idea, but it is a mistaken one, at least as applicable to a replevin suit brought by a person not a party to the original suit, seeking as owner to obtain possession of goods attached. Owing to the peculiar character of the action of replevin, and of the rights of the attaching creditor which the bond is given to secure, and - the contingencies attending the prosecution of either suit, there may happen many subsequent events which may terminate the liability of the plaintiff in replevin upon his bond; not strictly because the condition of the bond is fulfilled, but because the bond is thereby rendered functus officio and inoperative. There is nothing in the' opinions of Judge Sherman in Ladd v. Prentice, or Green v. Barker, to which we are referred, which countenances the idea that the — 147 — bond is by such events fulfilled. He does indeed say in Ladd v. Prentice, that in all cases where a final trial has been had and no obligation to re-deliver the goods is incurred, the plaintiff prosecutes to effect, although the judgment may be for the defendant, but that is because, in the case supposed, the defendant had renounced or waived his right to a return of the goods, and with it his opportunity of enforcing his attachment against the property, or making any claim upon the replevin bond, by pleading the general issue merely. But in Green v. Barker . he expressly said, that if the suit in which the goods are attached is withdrawn or discontinued the bond becomes “ inoperative; ” and if there has been a judgment of return that becomes inoperative &c. And in Badlam v. Tucker, 1 Pick., 285, to which we are referred, the court did not incline to consider the abatement by the death of the party as a fulfillment of the condition to prosecute to effect, (although that view and the English cases cited here were pressed upon them,) but as terminating all liability on the bond by rendering its performance impossible by the act of God. The subsequent events which render the replevin bond functus officio may be divided into- several classes, and such classification with a reference to a few of the cases cited will serve to show the fallacy of the claim made by the plaintiff in error. In the first class may be placed such events as terminate the suit of the attaching creditor adversely to him, and thus put an end to his lien. Second, a termination of the original suit and lien by the death of the debtor, which dissolves the lien, as in Green v. Barker, 14 Conn., 431, and other cases cited. Third, events like the death of a party in replevin, which determine that suit, and render the performance of the condition of the bond impossible by the act of God ; as in Badlam v. Tucker, and other cases. Fourth, events where the defendant in replevin by his laches or misconduct loses or waives his rights under the lien by attachment, or renounces his right to a return by failing to make avowry and pleading the general issue, as in Ladd v. Prentice; or otherwise loses his right to a return by his laches and misconduct in the particular case. In these and other like cases the bond — 148 — becomes inoperative as a security, either because its performance has become impossible by the act of God, or because the defendant in replevin has lost, renounced, or waived the right which the bond was given to secure, and upon the plain principle that the security falls with the right which it is given to secure. But when the defendant is prevented from avowing his right and obtaining a judgment in his favor and for a return by the act or fault of the plaintiff in replevin, as where he takes out a defective writ and the suit is abated, as in Fleet v. Lockwood, 17 Conn., 233, or he becomes nonsuit, discontinues or withdraws -the action, as in Ormsbee v. Davis, or by any other act or fault of his the suit is determined, the defendant, on avowry or suggestion, may have a judgment of return if the position of the case in court will permit it; or if not may have his remedy on the bond; for in all such cases there is a failure to prosecute. These principles applied to this case are decisive. The facts averred in the declaration are sufficient to show that the plaintiff in replevin withdrew his suit, and under such circumstances as to deprive the defendant of his opportunity to suggest or avow and obtain a judgment of return. Such withdrawal was a clear failure to prosecute, and a breach of one of the two-fold conditions of the bond, and to hold otherwise would be a reproach to the law. It is further claimed that the declaration is insufficient because it does not aver a demand for payment upon the original debtor in the execution, before making demand of the plaintiff in replevin for the property. The defendant in error has well replied to this claim by saying that the plaintiff has no interest in the question whether the officer did or did not make such demand of the debtor. The duty of the plaintiff in error, the performance of the con-dition of his bond, was not contingent or in any way dependent upon such default of payment by the original debtor. The terms of his bond required him to prosecute to effect or re-deliver the goods to the officer having, not serving, the execution. It was sufficient for him to know his duty to re-deliver, — 149 — and tbe fact that the officer had the execution, and therefore had a right to demand and receive the property. It is farther insisted that a particular demand of the debt and cost should have been averred. The action is on the bond, alleging the forfeiture and demanding the penalty in conformity with precedent and principle. For that penalty, or any less sum equitably due as an alternative by force of the statute, and which it became the duty of the obligor to pay when he refused to deliver the goods to the officer, as he well knew, bringing the action was a sufficient demand. There is no error in the record. In this opinion the other judges concurred.