Smith v. Trawl

1 Root 165

• Court: Connecticut Superior Court
• Decided: January 15, 1790
• Status: Published

Opinions

By the Court.

The question in this case is, whether the plaintiff’s bond, upon a replevin, in any ease, let him be ever so responsible, can be considered as good and sufficient security, within the letter and meaning of the law. 2d. Whether, as the statute is worded, and the practice hath been, the justice is guilty of a- malfeasance, for which he is liable in damages; or only as having committed an error in judgment.

The statute respecting attachments is, that the plaintiff, on praying out an attachment against the goods and the estate of the debtor, shall give sufficient security to prosecute. The parties’ bond is constantly taken in these cases, and if the security is insufficient, an objection made to the court, to whom the writ is returned, will order a new bond to be given. The attachment takes the property from the defendant into the custody of the law, for the purpose of responding the judgment which shall be recovered; or to return it in safety to the debtor.

On praying out a replevin the law is, that the plaintiff shall give good and sufficient security to prosecute his replevin, etc. This writ is to take the property out of the custody of the law, and return it to the owner; it is to relieve a defendant against any injury he might sustain, by having his property detained from him; the bond is deposited in the place of the property, to respond the judgment. Now as the statute doth not explicitly require that it shall be a bond with surety, but only that it shall be good and sufficient security, if the justice judged that the plaintiff’s bond was good and sufficient security, although, it in fact was not, and although it is not what the statute meant, in this case, by good and sufficient security, still it is but an error in judgment, for which he is not liable, unless it appeared, that he acted corruptly; and in this case it doth not appear that he did.