Greely v. Currier , 39 Me. 516 ( 1855 )

Rice, J.

— By provision of § 10, c. 130, R. S., an officer, before serving a writ of replevin is required to take from the plaintiff, or some one in his behalf, a bond to the defendant, with sufficient sureties, in double the value of the goods replevied, conditioned, &c., to be returned with the writ. This bond is provided for the security of the defendant, the taking of which is a condition precedent which must be complied with before a legal service of the writ can be made. It, however, being a provision for the defendant’s benefit, may be waived by him. Or if he choose he may take advantage of defects in the bond by plea in abatement or on motion. Johnson v. Richards, 2 Fairf. 49; Simonds v. Parker, 1 Met. 508. A defect apparent on the record may be taken advantage of as well by motion as by plea in abatement. Chamberlain v. Lake, 36 Maine, 388. But such motion must be made within the time prescribed for filing pleas in abatement. Nickerson v. Nickerson, 36 Maine, 417. The motion in this case was made on the second day of the return term and was therefore in season.

In the case of Smith & al. v. Fuller & al. 18 Wend. 521, and Hawley v. Bates, 19 Wend. 432, cited by counsel for plaintiff, the Court held, that a defect appearing upon the face of the bond could be taken advantage of on motion, if seasonably filed. Bonds in those cases, with one surety, when the statute required sureties, were held defective by the Court, but the plaintiffs were permitted to file new bonds within thirty days on payment of costs. -This permission was granted under authority of § 31, p. 527, vol. 2, R. S., of New York. No such authority is conferred by our statutes.

The case of Hicks v. Hull, 11 B. Munroe, 53, in which the Court intimate, that in certain contingencies a new re-plevin bond would be ordered, is founded upon statute provisions similar to those existing in New York.

Section ll,.o. 130, R. S., provides, that if it shall appear upon the nonsuit of the plaintiff, or upon a-trial or otherwise, that the defendant is entitled to a return of the goods he shall have judgment therefor accordingly.

How shall it be “ made to appear ?” Clearly not by the production of testimony, when the plaintiff is out of Court. That would authorize a party to try a question of fact before the Court, without a writ and without a bond, which the defendant has a right to have tried by a jury, after a sufficient bond has been filed and legal service made of the writ. It did appear from this fact, that the property had been taken without legal authority, and that the defendant was entitled to a return. This want of authority being apparent on the record, and being properly and seasonably brought before the Court and insisted upon, was conclusive as well upon the Court as the plaintiff. The admission of the testimony offered would have been wholly unauthorized. Exceptions overruled, and

Judgment affirmed.

Tenney, J., was not present at the hearing and took no part in the opinion.