Knapp v. Colburn

4 Wend. 616

• Court: New York Supreme Court
• Decided: May 15, 1830
• Status: Published

Opinion

By the Court,

Sutherland, J.

The declaration is fatally ¿[efectjTe jn not averring that the goods replevied were taken by the plaintiffs as a distress for rent. It is only in such cases that the bond is assignable so as to authorize the assignees of the sheriff to bring the action in their own names. The eighth section of the “ act to prevent abuses and delays in actions of replevin,” (1 R. L. 93,) which is a transcript of the 11 George 2, ch. 19, authorizes this course of proceeding in every replevin of a distress for rent, where the bond is forfeited. It is indispensible, therefore, where the action is brought in the name of the assignee, that it should appear on the face of the declaration that the goods were originally taken as a distress for rent; without it, the plaintiff shews no right or title to sue. All the precedents contain this averment. (2 Chit. Pl. 169.) Where goods, not taken as a distress for rent, are replevied, the proceeding are under the 4th section of the act already referred to, which is a transcript of 13 Ed. 1, ch. 2, § 3. Under this section the sheriff is not bound to take a bond. The nature and form'of the security is left to his own discretion, and is not assignable, so that the defendant in replevin may sustain an action upon it in his ówn name. (Gilb. R. 75. 1 Saund. 195, n. 2 Mass. Rep. 517.) This was expressly adjudged in Gibbs v. Bull, (18 Johns. R. 438.)

The form of ths bond in this case is adapted to the eighth section, and the declaration was evidently framed with a view to that section, and not to the fourth. It corresponds with the precedent in Chitty already referred to, except in the material averment, that the goods were taken as a distress for rent. If'they were so taken, it should have been alleged. If they were not, then the action should have been in the name of the sheriff, and not of the plaintiffs.

The declaration in other respects 1 am inclined to think is substantially good, although it is informal in stating the title of the court out of which the original plaint issued, and also with respect to the return of the certiorari.

It is not necessary in this action upon the bond to aver the issuing of a writ de retorno habendo and a return of elongata. (Gwillim v. Holbrook, 1 Bos. & Pull. 410, and 2 Chit. Pl. 169.) Where an action on the case is brought against the sheriff under the fourth section of the act for taking insufficient security, it is necessary to allege that a writ of retorno habendo had been issued, and elongata returned. (Gibbs v. Bull, 18 Johns. R. 435.)

Judgment for defendants on demurrer, with leave to the plaintiffs to amend on payment of costs.