165 Mass. 505 | Mass. | 1896
The defendant, a deputy sheriff, was requested by the plaintiffs to commence the service of a replevin writ by seizing and appraising the property described in the writ. The plaintiffs offered to give him all reasonable directions and assistance in serving the writ, including an indemnity bond, and to give a replevin bond with sureties as soon as the appraisal was made. The defendant refused to take any steps in regard to the service until the replevin bond had first been given, and declined to take any indemnity bond.
In this refusal he was plainly in error. The plaintiffs under the statute, were called upon to give the replevin bond only in double the value of the property, and, in the absence of an agreement of the parties, that value could not be ascertained without an appraisal made under the direction of the officer such as the statute provides for. Pub. Sts. c. 184, §§ 12, 14. The method of procedure is stated in Wolcott v. Mead, 12 Met. 516. The substance of this statement is repeated in the opinion in Smith v. Whiting, 97 Mass. 316, in these words: “ Where a
In the present case the plaintiffs offered the defendant a bond of indemnity, which was refused. When there is no reason to doubt the defendant’s ownership the statute gives the plaintiff a right to have his writ served if he is ready to give a bond in double the value of the property as soon as that value can be ascertained in the manner prescribed. It is the duty of the officer, when the property described in the writ is pointed out to him, immediately to take it into his possession for the purpose of having it appraised and ready to be replevied as soon as the bond is given. The writ gives him a right, as against the defendant, to take it and hold it a reasonable time for that purpose. The plaintiff, upon the appraisal, is bound to furnish the bond promptly, for he knows when he sues out the writ that it cannot be served without the bond, and he can always approximate pretty nearly to the amount in which he will be required to furnish sureties. These considerations are important in determining in any case how long the officer is bound to wait for the bond after making the appraisal. The plaintiff would not be justified in suing out a writ of replevin without having made such arrangements in regard to furnishing sureties upon the bond as would give him good reason to believe that he could have the bond ready for delivery very soon after the appraisal. The short time for which the goods will necessarily be in the custody of the law before the service can be completed will not
Of course, the officer may have his fees paid in advance if he desires, and may have indemnity against any incidental liability that may arise from any special action which he takes at the request of the plaintiff Exceptions overruled.