Ex parte Livingston v. Superior Court

10 Wend. 545

Opinion

By the Court,

Nelson, J.

The motion is denied, with costs. We will not determine the effect of the judgment as entered upon motion, but leave the relator to his writ of error. We are inclined to the opinion, though we do not intend to express a definitive opinion, that the bond on which the suit is brought cannot be viewed in this state as a replevin bond, within any of the provisions of our statutes; but that it must be treated as an ordinary bond, conditioned otherwise than for the payment of money and falling within the general act requiring an assignment of breaches and an assessment of damages. Under this view, the relief of the plaintiff is in the court below, which may enable him to have his damages properly assessed.