Cowden v. Pease

By the Court,

Nelson, J.

The defendant’s counsel admits the plea to be bad, but insists that the declaration is defective . in not averring the issuing of a writ of retomo habendo, and that the same was returned unsatisfied, and reposes himself upon the provisions of the revised statutes as found in 2 R. S. 533, § 64. Such averment was not necessary previous to the revised statutes, 3 Wendell, 54; and they do not alter the form of pleading in replevin, as the condition of the bond is substantially the same as prescribed by the former statute, 1 R. L. 92, 3, § 4,8, and 2 R. S. 523, § 7. Under the former statute the plaintiff recovered judgment for the penalty, and the action on the replevin bond was held not to be within the statute requiring an assignment of breaches. 3 Wendell, 54. Now the revised statutes require an assignment of breaches of the condition of the bond as in other cases, and the return of the sheriff to the execution issued in the action of replevin, it is declared, shall be evidence of such breach, 2 R. S. 533, § 65; and the section immediately preceding, limits the recovery on the bond to the val ue of the property replevied, and the monies, damages and costs awarded to the defendant in the replevin suit, as the case may be. It is true that the suit on the bond cannot be commenced until the return of the execution unsatisfied in whole or in part, § 64 ; but this is matter of proof, as in a suit upon a recognizance of bail. 1 R. L. 324, § 6. 2 R. S. 382, § 31. The issuing of the capias ad satisfaciendum against the principal, and a return of non est inventus thereon, before the commencement of the suit against the bail, was always essential to the maintenance of such suit; but it was never necessary to aver in the declaration the issuing and return of such writ. We prefer retaining under the revised statutes the old forms of pleading, where it can be done without a violation of well established principles.

Judgment for plaintiff.^*

* Decided January term, 1833.