1 Aik. 139 | Vt. | 1826
The opinion of the Court was delivered by
There are two kinds of replevin recognized by our statute : one, where property is taken damage fasant, and impounded ; the other, where property is attached on mesneprocess; and the form of proceeding, as also the condition of the bond to be given in each case, is particularly pointed out. This action is in the common form of an action of debt, upon the penal part of a bond, executed by the defendants to the plaintiffs. Oyer having been demanded, the bond.is spread upon the record, with such condition, in substance, as is required by the statute to be given,, in case property taken damage feasant, is replevied, viz. that the plaintiff in replevin prosecute his said suit to effect, and in case of failure, pay all such damages and costs as should be awarded against him. Replevin, where property is taken damage feasant, is brought to try the right of distress, and, if found for the distrainer, he recovers judgment, as well for his damages as his costs, and the bond stands as security therefor. In this case, the defendant alleges in his plea, that he did prosecute, according to the condition of the bond; that judgment was rendered against him, on a plea in abatement, and for costs which he has satisfied. We are not informed by the pleadings what the declaration or complaint was in that suit; all that this record shows, is, that it was replevin under the statute. From the bond and condition, as given on oyer, and the plea of the defendant, it appears to be replevin in a case of distress of property, taken damage feasant. The plaintiffs, in their replication, aver, that the property was attached by them, and replevied ; and that the bond- here prosecuted, was given on that occasion. It is unnecessary, therefore, to consider the question, whether replevin will lie as an adversary suit, to try the right of property, or, whether it will lie in any case, except the two which are provided for, and regulated by statute.
It is not denied by the plaintiff, that, if this was a case of property taken damage feasant, and replevied, the plea in bar would be sufficient; and we are clearly of opinion, if it is a case of property attached, the proceeding is wholly void; and this seems to be conceded by the plaintiff. But it is insisted, that although the replevin was void, and the officer liable, as he clearly is, yet, the bond is good at common law, against the defendants. If a creditor, having attached the property of his debtor, should consent to have it go back into his hands, in consideration of a bond, conditioned to pay the amount of such judgment as should be rendered in the suit, or to deliver up the property, to be taken on the execution, such bond would, undoubtedly, be valid ; but this will bear no analogy to such case.
The condition of the bond shows, that it was not a contract entered into by the agreement of the parties, nor given by the consent of the plaintiffs. It has no reference to any suit which the plaintiffs were prosecuting against the defendants, and of course, to no damages that might be awarded in such suit. It purports to be a replevin bond, executed by the defendants, under the authority of the law, and without the consent or agreement of the plaintiffs, and by force of which, the property of one of the defendants, then in the custody of the law, was restored to him. The condition is, to prosecute a suit against the plaintiffs, &c. and is in the form pointed out by the statute. It would be a strange perversion of the legal import of the condition, to say the damages awarded could apply to any other damages, than such as should be awarded in the suit in which the bond was given — none other can be intended. To depart from the plain meaning of the instrument, and by testimony aliunde, give to it an effect beyond what was intended by the law under, which it was made, would be to violate one of the clearest principles known to the law.
Judgment, that the replication is insufficient.
