Westervelt v. Bell

19 Wend. 531 | N.Y. Sup. Ct. | 1838

By the Court,

Bronson, J.

The old precedents of declarations in actions, on the case against the sheriff for taking insufficient sureties in replevin, will no longer answer without some additional averments. Formerly the sheriff was answerable for the sufficiency of the sureties in all cases ; but now he is liable only where the defendant in replevin has excepted to the sufficiency of the sureties, and they, or new sureties to be offered by the plaintiff, have failed to justify within the time prescribed by law. 2 R. S. 527, § 28, 33. It must now be averred in declaring against the sheriff, that an exception was taken that the sureties or others in their place, did not justify, and that judgment of discontinuance has for that cause ;been rendered against the plaintiff in replevin. No such averments are contained in the 3d or 4th counts of this declaration.

But it is said on the part of the plaintiff below that these counts charge that no bond at all was taken by the sheriff; and it will be found the pleader has substantially followed the precedents given by Mr. Chitty for not taking a replevin bond, according to the statute. 11 Geo. 2, c. 19. 2 Chit. PI. 355, 357. The language of the declaration is equivocal. The averment in the 3d count may mean, either that the sheriff took no bond at all, or only that the sureties were insufficient; and in relation to the 4th count, it is doubtful, to say the least, whether the pleader intended to allege that no bond was taken, or only that the sureties were not responsible persons. In England this equivocal mode of declaring may be sufficient, for the reason that the action will lie as well where the sheriff has wholly omitted to take sureties, as where he has taken those who are insufficient. Moyser v. Mayor of Beverley, Cro. Car. 446. 1 Saund. 195, note 3. The King v. Lewis, 2 T. R. 617. Lord Coke in his commentary on the statute of Westminster the Second, 13 Edw. 1, c. 2, says, if the sheriff return insufficient fledges, they are no fledges within this statute, and in that case the sheriff shall be charged by this act as if he had taken no pledges at all. 2 Inst. 340. But under our statute, the distinction between taking no sureties at all, or those who are insufficient, may be very material in proceeding against the sheriff; for where he has taken sureties, no action will lie until after their sufficiency has been tested by an exception, and they, or others to be offered in their'place, have had an opportunity to justify. In this case, if no bond was taken by the sheriff, that fact should have been directly and plainly alleged, and for the want, of such an averment, [think the 3d and 4th Counts were bad on demurrer.

There is a further objection to the 4th count. rphe pleader has followed the precedents in actions on the statute, 11 Geo. 2, c. 19, which requires the sheriff to take a bond from the plaintiff, "and two responsible persons as sureties." Our statute forbids the execution of the writ, unless the plaintiff shall execute a bond, " with sufficient sureties." I do not intend to say that this objection is fatal, though it certainly would have been more safe to follow the language of the statute.

As judgment was rendered for the plaintiff on the whole record, it mnst be reversed.

Judgment reversed.^*

* See opinion of Chief Justice Savage in Smith v. McFall, 18 Wendell, 523, decided in December, 1835; and also see opinion of Chief Justice Nel bon in Wilson v. Williams, 18 id. 585, as to the liability of the sheriff..