Homan v. Brinckerhoff

1 Denio 184

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: May 15, 1845
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

The statute under which the plaintiffs proceeded against Davis provides, that before any attachment shall issue, there shall be a bond in the penalty of at least one hundred dollars, with a certain specified condition. (Stat. of 1831, p. 404, § 35.) The instrument which the justice took is not a bond. It- is a covenant to pay one hundred dollars, or do something else, in a certain event. (Rockfeller v. Hoysradt, 2 Hill, 616.) I do not see hów we can depart from the statute, and say that a covenant will answer the purpose. As there was no bond, the justice did not acquire jurisdiction to issue the attachment, and the plaintiff was a trespasser in taking the property. • He cannot maintain an action on the bond which was given to obtain the liberation, of the property thus illegally taken.

It is said, and well said, that the justice obtained jurisdiction in the attachment suit when the defendant Davis appeared and pleaded to the declaration. The judgment rendered in that suit was therefore valid. But that will not aid the plaintiff. He did not hold the property under the judgment. No execution had been issued at the time the* bond in suit was executed. If Homan had waited until execution had been issued, his claim would have come too late for this form of remedy. (2 R. S. 231, § 33.) Although the plaintiff had got a valid judgment, he had no other hold upon the property than such as the attachment gave him; and that, as wo have seen, was utterly void for want of jurisdiction to issue it. There must be a venire de novo.

Judgment reversed. .