Smith v. Whiting

97 Mass. 316

Opinion

Chapman, J.

Where a writ of replevin is served, the officer first takes the property from the possession of the defendant, then has it appraised, and afterwards, but before he delivers it to the plaintiff in the action, he takes the replevin bond. Gen. Sts. c. 143, §§ 3, 4, 5,12. Wolcott v. Mead, 12 Met. 516. Case v. Pettee, 5 Gray, 27. It is given for the use of the.defendant, and is his only security for the property that has thus been taken from him. The delivery of it to the officer for the defendant’s use is a sufficient delivery of such an instrument. The provision of the statute that the officer shall return it to the court or justice with the writ is merely directory, and a strict compliance with it is not necessary to the validity of the bond, any more than it is to the validity of the writ. In practice, the writ is usually delivered to the plaintiff’s attorney, but the bond ought not to be delivered to him.

To construe the statute otherwise would give the plaintiff an unreasonable advantage, and subject the defendant to an unreasonable risk. The condition of the bond was broken in this case by the neglect of the plaintiff in replevin to prosecute his suit; and the ruling of the superior court, which was merely pro forma, was erroneous. New trial granted.