Pettygrove v. Hoyt, 11 Me. 66

Pettygrove v. Hoyt

11 Me. 66 | Me. | 1833

The opinion of the Court was delivered by

' Mellen C. J.

’The condition of the bond declared on is in the legal form; namely, that Hoyt, the plaintiff in the action of replevin, should prosecute the said replevin to final judgment, and pay such damages and costs as the said Pettygrove should recover against him; and also return and restore the boat replevied, in like good order and condition, as when taken, in case such should *69be the final judgment. In the 4th section of ch. 80 of the revised statutes it is enacted, among other things, that “ in case the plaintiff in replevin shall neglect to enter and prosecute the suit, the defendant may, upon complaint, have judgment for a return and restoration of the goods and chattels replevied, and the damages for the taking, to the amount of six per cent, on the bond, with reasonable costs.” The bond is given with sureties to secure to the defendant in replevin the complete execution of the judgment which he may recover against the plaintiff. The judgment and execution thereon are sufficient to compel the plaintiff to do justice, if he has property to pay damages and costs, and to obtain a return and restoration of the property replevied, if not eloigned; but in failure of a satisfaction of the judgment by statute process, the bond must be resorted to, in order to reach the sureties, and compel them, to pay damages, equal to the injury sustained, by the neglect of the principal to satisfy the judgment in all respects. The sureties are bound to perform what the principal was adjudged to perform, or must pay damages as an equivalent for performance. It is a familiar principle that the Court cannot enlarge or vary the condition of the bond. The view we have thus taken will simplify the cause and lead us in a direct course to the legal conclusion. We have seen by the part of the 4th sec. above quoted, that Pettygrove was entitled, upon his complaint to a judgment for a return of the boat, for damages and costs, because the original plaintiff neglected to enter and prosecute the replevin : but for some reason, ho prayed and had a judgment for costs only. The Court observe, in the case of Badlam v. Tucker, 1 Pick. 284, “ whenever the defendant in replevin is entitled to a return, he should move for it on the rendition of such judgment.” It is very clear that a nonsuit or a discontinuance is a broach of the condition of the bond : and so also is a failure to enter and prosecute the action : for the original plaintiff was not prevented by the act of God, as by death. But though the condition of the bond was thus violated, the question is, whether the present action is maintainable, in the peculiar circumstances of the case ; the judgment for costs having been satisfied, and no judgment for a return or for damages having ever been rendered. As we have stated before, by the condition, the *70obligors were bound to pay the obligee such damages as he should recover, and he recovered none; and return the boat, if such should be the final judgment; and there never was any such judgment. All these facts are placed before us in the simple form of a statement of facts ; and all are to be considered upon their merits, without any reference to form, or technical learning ; and notwithstanding the labored argument of the plaintiff’s counsel, we are unable to find any solid ground on which the action can be sustained. —Accordingly a nonsuit must be entered.