Lambden v. Conoway

Superior Court of Delaware

Lambden v. Conoway

5 Del. 1

DecidedJuly 5, 1848

StatusPublished

This text of 5 Del. 1 (Lambden v. Conoway) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lambden v. Conoway, 5 Del. 1 (Del. Ct. App. 1848).

Pincite

Opinion

By the Court.

We think, that the taking an assignment of the replevin bond from the sheriff releases him. If it does not, the party may now release him. As to the other question, it is competent for the party to call other evidence of the execution, in support of the -attesting witnesses.

He proved the execution of the bond by Noble Conoway, and explained certain erasures and interlineations which were made before signing.

Plaintiff then put in the record of the replevin suit; in which there was judgment for the defendants.

Messrs.Layton and McFee, for the defendant, made the following points. Dig. 364, see. 7, furnishes the condition of a replevin bond. It requires the condition to be, that if William B. King, at whose suit the replevin is issued, or his executors, &c., shall .prosecute said suit with effect, and shall fully and without delay satisfy any judgment which shall be given against the said Wm. B. King, or his executor, &c., in said suit, then, &c.

This bond is not even substantially the same. All defences should be pleaded specially. (2 Saund. Pl. & Ev. 770, 290.) Defendant is at liberty to deny any thing material in the narr. (1 Chitty Pl. 478-9; 1 Saund. Rep.; 2 ib. 59, 60, n. 3; 1 U. S. Dig. 180, § 428, § 430.) If a statutory bond contain one term not according to the statute, the whole is void. (Cro. Etiz. 529; 2 T. Rep. 569; 7 T. Rep. 105-7; 1 ib. 418 ; 8 Bing. Rep. 371; 4 East Rep. 568; 6 Taunt. Rep. 551; 2 Saund. Rep. 59, 60, n. 3.)

This bond differs from the statute in these respects; 1. It requires the appearance of the defendant, which the statute does not. 2. It does not require him to pay and satisfy any judgment to be rendered against the plaintiff in replevin, which the statute does.

*3 The Court,

without hearing the other side, sustained the bond ; having fully considered this question in State, use of Hazzard vs. Layton. (4 Harr. Rep. 412.)

Exception prayed and granted.

Free access — add to your briefcase to read the full text and ask questions with AI

By the Court.

We think, that the taking an assignment of the replevin bond from the sheriff releases him. If it does not, the party may now release him. As to the other question, it is competent for the party to call other evidence of the execution, in support of the -attesting witnesses.

He proved the execution of the bond by Noble Conoway, and explained certain erasures and interlineations which were made before signing.

Plaintiff then put in the record of the replevin suit; in which there was judgment for the defendants.

Messrs.Layton and McFee, for the defendant, made the following points. Dig. 364, see. 7, furnishes the condition of a replevin bond. It requires the condition to be, that if William B. King, at whose suit the replevin is issued, or his executors, &c., shall .prosecute said suit with effect, and shall fully and without delay satisfy any judgment which shall be given against the said Wm. B. King, or his executor, &c., in said suit, then, &c.

This bond is not even substantially the same. All defences should be pleaded specially. (2 Saund. Pl. & Ev. 770, 290.) Defendant is at liberty to deny any thing material in the narr. (1 Chitty Pl. 478-9; 1 Saund. Rep.; 2 ib. 59, 60, n. 3; 1 U. S. Dig. 180, § 428, § 430.) If a statutory bond contain one term not according to the statute, the whole is void. (Cro. Etiz. 529; 2 T. Rep. 569; 7 T. Rep. 105-7; 1 ib. 418 ; 8 Bing. Rep. 371; 4 East Rep. 568; 6 Taunt. Rep. 551; 2 Saund. Rep. 59, 60, n. 3.)

This bond differs from the statute in these respects; 1. It requires the appearance of the defendant, which the statute does not. 2. It does not require him to pay and satisfy any judgment to be rendered against the plaintiff in replevin, which the statute does.

*3 The Court,

without hearing the other side, sustained the bond ; having fully considered this question in State, use of Hazzard vs. Layton. (4 Harr. Rep. 412.)

Exception prayed and granted.

Cite This Page — Counsel Stack

Bluebook (online)

5 Del. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lambden-v-conoway-delsuperct-1848.