Kerrigan v. Ray , 10 How. Pr. 213 ( 1854 )

Mitchell, Justice.

Under the old system, such a motion would be granted almost of course. Then the summons, or original writ, on which the action was founded, described the property claimed; and it was a rule that the declaration in all bailable actions should conform to the writ, and as there the ac etiam in the capias showed the true cause of action, and as the original writ equally showed the true cause of action in replevin, there was the same reason for requiring conformity in that case also. But there are several points of difference between the old and new systems, which may make a different rule now proper.

Under the old system, the delivery of the original writ to the sheriff was the commencement of the action; under the present, it is the service of the summons on the defendant, which has that effect. Under that system, the original writ described the property; under the present, the summons, which stands in place of that writ, merely notifies the defendant that the plaintiff will, in case of default, ask for the relief demanded in the complaint, without telling what that relief may be; so that there can be no want of conformity apparent on comparing the complaint with the process; and under the present practice, wdien judgment is obtained, the summons will show no discrepancy, and the affidavit, will not exhibit any, as it does not form part of the judgment.' (Code, § 281.) If the defendant succeeds, and obtains judgment, it can only be for the return of so much of the goods as the plaintiff obtained from him on the requisition ; not for what he did not take.

The decision of this motion must, therefore, depend on the equitable‘circumstances of the case. The plaintiff shows that he “ commenced his proceedings in good faith for all the property ; but that, before he could serve the summons, the part of the property omitted from his complaint was attached by another deputy of the sheriff, on an attachment against one of the defendants, and was taken into the possession of that deputy, and from the possession of that defendantso that the plaintiff could not, in truth, swear, in his complaint, that at the. time of commencing the action the defendant held and retained that property; and this action (it has been held) will only lie for property detained by the defendant when the action is commenced—not for property wrongfully taken by him, and which he had parted with before suit brought. The plaintiff" has never had that part of the property in his possession, or under the control of his process: if he had, it would be right that he should be responsible for its safe return. If the defendant has lost it, it has been through the attachment of another creditor, alleging fraud or non-residence, or absconding on the part of the defendant. The plaintiff1 should not suffer for the actual fault of the defendant, nor for imputations made against the defendant falsely by others. The defendant should seek his relief against the attaching creditor, if he has done him any wrong.

Motion denied, without costs. ,