Garlin v. Strickland

27 Me. 443 | Me. | 1847

The opinion of the Court, Tenney J. concurring in the result only, was drawn up by

Whitman C. J.

There seems to be no question but that the defendant’s deputy had the writ of replevin in his possession, for the purpose of being served, as alleged by the plaintiff ; and it must be presumed to have been in common form. In such case the mandate was to replevy the goods, &c. provided the plaintiff gave to the defendant a bond, with sufficient surety or sureties, to restore the property, &c. and to return the writ and bond, to the court named in the writ. It is very clear, from the case as reported, that the deputy neither took a bond of the plaintiff as required, or made any retumbo the Court. If, therefore, the proper action to be brought is trespass on the case, the plaintiff, upon the general issue, would seem to have made out a good case.

A bond appears to have been prepared, and probably in due form ; but, instead of being executed by the principal, or any one authorized by him for the purpose, the plaintiff’s name in that suit was put to it by one, who afterwards signed it as surety, and who had no authority from the principal to put his name or seal to it. It is immaterial whether the sureties were good or not; for not being executed by the principal, or any one having authority from him for the purpose, the deputy had no legal right to take the goods from the possession of the present plaintiff; and in doing so he became a trespasser ; and was amenable, in an action of trespass vi et armis or trover, for the goods. Purple v. Purple & al. 5 Pick. 226. Such would be the appropriate remedy. The injury was direct and immediate, and not consequential. Whether a special action of the case is sustainable in such case may at least admit of a doubt.

In cases like the present it does not seem, that the not returning of the writ and bond formed a legitimate ground of complaint, on the part of the plaintiff. He has proved, in effect, according to his first count, that no bond as required by the statute, was taken. If none was taken none could be expected to be returned. The allegation that the bond had not been returned supposes, necessarily, that one had been taken. The proper and only ground of complaint, that no bond had been taken, which is alleged and proved, is the gravamen, if any, to be relied on. The statute does not require, if there be no bond taken, that one shall be returned. Such a requirement would be absurd: and if the statute does not require it, the not doing it is no ground of complaint. The plaintiff’s only ground of complaint, therefore, arises from the wrongful taking of his property, when wrested from him, under color of authority when none existed. It is much like the case of an attachment of property to secure a debt, when the Court issuing the writ commanding the attachment, has no jurisdiction ; or perhaps, more like a lawful attachment of property, and a failure to complete the service by leaving a summons the requisite time before Court, whereby an officer would become a trespasser ab initio. In either case the ground of complaint, for which an action would lie in favor of him whose property had been taken, would not be for not returning the writ. His only remedy would be by an action of trover or trespass vi et armis, against the officer making such a void attachment, or those who had ordered or co-operated with him in making it.

The statute of limitations in such case must begin to ran from the time the trespass was committed. The case of Hariman v. Wilkins, 20 Maine R. 93, is not applicable to such a case. In that case, (an action of replevin,) a bond was taken, duly executed, both by the principal and surety. The officer had duly returned that he had, pursuant to his precept, taken a bond. The defendant had a right to rely upon his return so made. He had no right to a suit upon the bond till judgment in his favor had been rendered, nor until there had been a breach of its condition. Plaintiff nonsuit.