Picard v. American Eagle Insurance

4 R.I. Dec. 71

• Court: Superior Court of Rhode Island
• Decided: January 5, 1928
• Docket: No. 70202
• Status: Published

Opinion

TANNER, P. J.

This is an action on a replevin bond and is heard upon demurrer to the declaration.

The third ground is that it does not appear in and by said declaration what avowry, cognizance or plea was made or pleaded by said Henry Picard in said action of replevin.

We do not think it necessary under modern practice to state what the defendant’s pleas were.

Demurrer on this ground is overruled.

The fourth ground is that it does not appear in and by said declaration what issues were made by the pleadings in the action of replevin in the declaration mentioned and upon which it is alleged the American Eagle Insurance Company became non-suited.

Demurrer upon this ground is overruled.

The fifth ground of demurrer is that it does not appear in and by said declaration that any judgment has been entered in the action of replevin in which the bond upon which this action is based was given.

We think that all that is necessary is that the declaration should state either that the plaintiff in replevin did not prosecute his right of replevin to final judgment and pay such damages and costs as the defendant in said writ may have recovered against him, or return and restore the same goods .and chattels in like good order and condition as when taken, there having been such a final judgment on such writ.

For plaintiff: John R. Higgins. For defendants: Greene, Kennedy & Greene.

34 Cyc. 1598 (5).

The breach of either one of these conditions is sufficient to maintain the action. We do not think that the breach is properly alleged in the declaration.

The fifth and sixth grounds of demurrer are sustained.