7 R.I. 312 | R.I. | 1862
The plea in abatement questioned by this demurrer is confined to the first count in the declaration, and to the writ so far as it relates to the matter contained in that count. The breach of the replevin bond laid in that count is, the nonpayment of the damages and costs recovered by the present plaintiff, as defendant in the replevin suit; and the question raised by the pleadings is, whether a suit will lie upon the replevin bond to recover such damages and costs, until after the return day, or at least the return non est, of the execution issued in the replevin suit. By the condition of the bond, the defendants bound themselves, amongst other things, to pay such damages and costs as the plaintiff, then defendant in replevin, might recover against the plaintiff's in replevin. The recovery here intended refers to the judgment, and not to the execution, *317 which is the means only of enforcing it. It is because these means may fail, that the statute requires, in addition, a bond with sureties to be given, to ensure the performance of the judgment. The liability of the plaintiffs in replevin was immediately consequent upon the judgment against them, enforceable at any moment by imprisonment of their persons, or levy upon their property under the execution which at once issued upon the judgment. By the terms of the bond sued, their liability and that of their sureties was precisely the same, — the bond giving an additional remedy and further security for it: and neither the principals nor the sureties can set up any defence, except performance of the conditions of the engagement into which they have entered. There is no such analogy between a replevin and a bail bond as is supposed by the counsel for the defendants; and the peculiar rights and obligations of bail can shed no light upon the liabilities of either the principals or sureties of a replevin bond.
We notice, too, that this plea in abatement follows two pleas in bar; and we have already decided, in a case too, embracing on both sides parties to this, that a plea to the merits is a waiver of all pleas in abatement subsequent to it.Gardner v. James and others, 5 R.I. Rep. 242.
For these reasons the plea must be overruled.
