10 Wend. 333 | N.Y. Sup. Ct. | 1833
By the Court,
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
Judgment for plaintiff.
Decided January term, 1833.