11 Mass. 282 | Mass. | 1814
The opinion of the Court was delivered by
This is an action of debt on bond; and the plaintiff has set forth in his declaration the bond and the condition, averring that the bond was lost by time and accident,
It has been contended, by the counsel for the defendants, that the bond is void and of no effect, because, as the writ of replevin is, by the terms of it, effectual only upon the giving of the bond uy the plaintiff in the suit with sureties, and as no such bond was given until many days after the writ was served, the whole process was void; and the sheriff, who had the custody of the goods upon the attachment, might have maintained trespass against the coroner, and those who instigated him to intermeddle with the property; and the motion for a new trial rests upon this objection.
Although it is certain that a coroner cannot lawfully execute a writ of replevin, without taking bonds according to the provision in the form of the writ prescribed in the statute,
He has availed himself of it, so far as to have a trial upon the question of property ; and it would be strange imbecility in the law to permit him to set up his own fraud or negligence to discharge
When the bond was brought to him to be executed by him, he knew that it had been made some days before, and that it was applicable to a suit previously instituted. He is estopped to say that it was made on a day different from its date, and must be considered as having given force and effect to it on the day of the service of the writ of replevin. The verdict of the jury is confirmed; and judgment of forfeiture is to be entered accordingly; but the defendants may be heard in equity,
Taunton & S. B. Turnpike vs. Whitings 10 Mass. Rep. 327. — Walsh vs. Barrett, 15 Mass. Rep. 380. — Inhab. Orleans vs. Inhab. Chatham, 2 Pick. 29.—Davis & Ux. vs. Spooner, 3 Pick. 284. — Taunton Bank vs. Richardson, 5 Pick. 436. — Adams vs Leland, 7 Pick. 62. — Bogart vs. Brown, 5 Pick. 18.
Moors vs. Parker & Al. 3 Mass. Rep. 310. — Morse vs. Hodson, 5 Mass. Rep. 314. — Purple vs. Purple & Al. 5 Pick. 226.
Stat. 1789, c. 26.
Arnold vs. Arnold, 8 Mass. Rep. 147. — Clap vs. Guild, 8 Mass. Rep. 153. — Chandler vs. Smith, 14 Mass. Rep. 313.