2 Day 293 | Conn. | 1806
1. The evidence ought not to have been admit ed. '! he writ of replevin must be regarded, as it purports to be, a writ in the name and favour of Gurclon I. Mr, sued out by him, to reclaim into his own possession, out of the custody of the law, the ship Ocean, being his estate attached at the suit at Clark. And the replevin bond, substituted as a pledge,-in lieu of the estate attached, to respond judgment in that suit, must be regarded, as it purports to be, a bond entered into, at the instance of Mulcr ;—and the obligors in the bond to be, as they are therein declared to be, the sureties of Miller. By the writ of replevin, the ship Ocean is avowed to be the estate of Miller, taken out of his possession, by the writ of attachment ; and the object of the writ, and the command therein to the officer, are to re-plevy the slop out of his hands, and the custody of the law, into the hands and possession of Miller. In obedience to this precept, on its execution, to him must the estate attached be delivered. The defendants in error are not to be permitted to aver, that they prayed out the writ of re-plevin, and procured the replevin bond ; and therein avowed the ship Ocean tobe the estate of Miller; and, in this action, to give those documents in evidence, on the ground that the estate attached belonged to them, and they had a right to possess it, and that the writ of replevin was obtained and replevin bond given, and used, as means, under colour of law, for them to get the estate attached out of the custody of the officer, into their own hands.
2. In the declaration, there is no averment of - the ship Ocean having been attached, or replevied ; they are not stated as grounds of injury, or of special damage; which, in the opinion of the Court, ought to have been done, to have entitled the plaintiffs in the original action to damages on that account, if such damages could, by law. be recovered. On this ground, also, the evidence was inadpiissible, in this action.
