Supmter v. Wilson

1 Smith & H. 65

• Court: Indiana Supreme Court
• Decided: May 15, 1848
• Status: Published

Opinion

Smith, J.

— “ The question before us is, whether the facts alleged in this plea constitute a bar to an action on the bond. We think they do not. In Sherry v. Forseman, 6 Blackf. 56, in an action upon a bond executed to procure a writ of replevin, there was a plea that the writ was dismissed, at the instance of the plaintiffs, on the ground of defects apparent on the face of the affidavit and writ, which was decided to be insufficient. That the writ was dismissed, in this case, because the bond was not executed until after the writ issued, affords no stronger reasons for holding the bond itself invalid. In the case of Speake and Others v. The United States, 9 Cranch, 28. a bond, upon which the suit was brought, was given under the embargo laws which required such bond to be given before a clearance issued, and a plea that the bond was not given until after a clearance had been issued and the ship had sailed, was held bad on demurrer.”

Judgment reversed, &c.