Rosen v. Fischel

Pardee, J. The writ which lies at the foundation of ail these proceedings and upon which alone the bond of Bincas and the defendant rested, was utterly void, and the invalidity was apparent upon its ^face. The officer and all persons directing him wére liable to_an action of .trespass at the suit [375] of Rosen & Son fox* taking property under it; it could not affox’d to any of them either defexxce or justification. The magistrate who placed his signature upon this void instrument was incapable of taking a valid boxxd for the. prosecution of the claim therein set forth to final judgment; practically, the writ was not returnable to any court; the signing of it, the entering ixxto a recogxxizance, and the record of the same, were each and all nugatory acts; forms merely, without substance. The law will not recognize them as being within its pale even for the purpose of furnishing redx’ess to Rosen & Son for the loss of their property. They have their action of trespass against the wroixg-doers axxd their action against the sureties of the sheriff, both of which proceed upon the idea of the entire unlawfulxxess of the proceeding. It is true thex’e is a possibility that they may suffer loss if they are coxxfined to these modes of protection and are deprived of their action against the sux-ety upon the bond; but this is a danger which they share with all other persons; for all are alike exposed to loss from acts of trespass committed by irresponsible persons and officers, axxd the law does not undertake to insure against all uxxlawful acts. We are aware that courts have sustained suits upon replevin bonds in ixxstances where it was found that there was no statutory fouxxdation for the writ of replevin, the property being held by an officer upon an execution; in instances where the bonds, although not in the precise form dictated by statute, yet having been voluntax’ily given upon a lawful writ, were xxevertheless holden to be good; ixx instances where the bond having been executed by the surety when the writ issued, but not by the principal until after the entxy of the action in court, the latter was not permitted to take advaxxtage of his own wrong; and in instances where the statute required the magistrate signing the writ to take the bond with two sux-cties and he took but one, the court ixot permitting the single surety to defend on the ground of this non-compliance with the statute after his principal had taken property by virtue of the writ. But in all of these, cases the courts to which the writs were made retux-nable had jurisdiction of the several [376] causes; none of the writs were absolutely void; and we have been unable to find any precedent for the judgment for the plaintiffs in the present action. There is manifest error in the judgment. In this opinion the other judges concurred.