AppletoN, C. J.
The city of Bath, one of the defendants in this suit, replevied from the plaintiff a quantity of wood attached by him, as a deputy sheriff, in suits against the Androscoggin Railroad Co. The bond given in the re-plevin suit was not in double value of the wood replevied. At the instance, and on the motion of the defendant in re-plevin seasonably filed, the writ was abated because the bond was not such as the statute requires. The then de[119] fendant moved for a return, which was ordered, but the order of the Court not being complied with, he brings this action upon the replevin bond. The presiding Judge, when the cause came on for trial, for the purpose of presenting the questions of law arising upon the preceding facts, ruled that the action was not maintainable and nonsuited the plaintiff, to which exceptions were duly filed and allowed.
The authority of the officer to replevy and deliver goods is, by the terms of the writ as well as by the statute, conditional. If the bond, required alike by writ and statute, is not given, the officer is not justified in making service. Moors v. Parker, 3 Mass., 310; Garlin v. Strickland, 27 Maine, 443.
Though the bond may not be in accordance with the statute, the defendant in replevin may waive any variance from its requirements. He has a right to require a statute bond, but he may conclude not to require one. If he delays seasonably to take advantage of such defect by proper plea or motion, or pleads the general issue, he cannot after-wards take advantage of it. Simonds v. Parker, 1 Met., 508.
If the plaintiff in replevin fails to give the statute bond and the defendant neglects to abate the writ for that cause, the obligors in the bond are bound thereby. " But, if,” remarks Parsoxs, C. J., in Morse v. Hodsdon, 5 Mass., 314, "the plaintiff execute an informal bond voluntarily, and to obtain possession of the goods, and the officer thereupon deliver him the goods, the defendant in replevin may, if he please, accept the bond and pursue a remedy at law, upon it, against the obligors, unless the bond be void at common law or by statute.” Although the statute requires two sureties in a replevin bond, the party for whose benefit it is taken may waive the objection that there is only one, and, if he does, the makers of the bond cannot resist a recovery on that ground. Shaw v. Tobias, 3 Coms., 188.
As the delivery of the bond is a condition precedent to the legal service by the officer, he may be treated as a [120] trespasser if he undertake to make service without the required bond. The remedy for the party from whose possession property has been thus illegally taken, is by action of trover or trespass vi et armis against the officer thus illegally replevying, and all ordering or cooperating with him in making such unauthorized service of the writ. Garlin v. Strickland, 27 Maine, 447. " Without the legal bond,” observes Parsons, C. J., in Morse v. Hodsdon, 5 Mass., 314, " the officer may be sued as a trespasser for taking the goods from the defendant in replevin, if he choose to consider him in that light, because the injunction of the writ is a condition not performed by the plaintiff in replevin.”
The defendant, having quashed a replevin suit because the replevin bond was defective by reason of having but one surety, may move for a return of the property replevied and it will be ordered, if it shall appear that he is entitled to such return. Greely v. Currier, 39 Maine, 517; Lowe v. Brigham, 2 Allen, 429. Thus, when an action of replevin is brought in the wrong county and the writ is abated for that cause, a return will be ordered. Collamore v. Page, 35 Vt., 387.
It thus appears, that the defendant in replevin may abate the writ, when the bond is not in accordance with the statute — and that, upon his motion, a return will be ordered. So, he may, if he deem it expedient, bring an action of trespass against the officer for wrongfully intermeddling with his property, by seizing it without the required bond.
But he cannot have both remedies. He cannot have his judgment for a return, with all its incidents, and his action of trespass for taking the property thus ordered to be returned. He may elect either mode of redress and pursue it.
The original defendant in replevin having abated the suit against him and having obtained upon his motion an order for a return, which was not complied with, the inquiry arises whether he cannot avail himself of the bond, by virtue of which, though defective, the service was made.
[121] The defendant in replevin may well insist that the writ and bond should be in conformity with the requirements of law. If the bond be defective, it is the fault of the plaintiff. The defendant may take advantage of any existing defect, whether in the bond or in the writ. The party neglecting to comply with the law cannot complain if advantage is taken of his non-compliance therewith. The defendant loses none of his rights by abating a process abatable through the neglect of his opponent. " We know of no ground,” remarks Storks, J., in Fleet v. Lockwood, 17 Conn., 233, " in which he is or ought to be precluded, by interposing this plea in abatement, from asserting his title. Indeed, it is difficult to imagine how, consistently with legal principles, the defendant by pleading in abatement to the regularity of the writ, can be deemed to waive any right, which he might have established, if the cause had gone to trial upon its merits.”
The motion for a return assumes that the property has been taken upon a replevin writ, though defective by reason of a non-compliance with the statute and for that cause abated. The judgment for a return rendered, the writ of return and restitution follows, and, in case the officer holding it for service cannot find the property, then the writ of reprisal with its incidents may issue.
By R. S., 1857, c. 98, § 18, though the goods are not restored upon the writ of restitution or reprisal, the defeud-ant is not precluded " from resorting to his remedy upon the replevin bond.”
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AppletoN, C. J.
The city of Bath, one of the defendants in this suit, replevied from the plaintiff a quantity of wood attached by him, as a deputy sheriff, in suits against the Androscoggin Railroad Co. The bond given in the re-plevin suit was not in double value of the wood replevied. At the instance, and on the motion of the defendant in re-plevin seasonably filed, the writ was abated because the bond was not such as the statute requires. The then de[119] fendant moved for a return, which was ordered, but the order of the Court not being complied with, he brings this action upon the replevin bond. The presiding Judge, when the cause came on for trial, for the purpose of presenting the questions of law arising upon the preceding facts, ruled that the action was not maintainable and nonsuited the plaintiff, to which exceptions were duly filed and allowed.
The authority of the officer to replevy and deliver goods is, by the terms of the writ as well as by the statute, conditional. If the bond, required alike by writ and statute, is not given, the officer is not justified in making service. Moors v. Parker, 3 Mass., 310; Garlin v. Strickland, 27 Maine, 443.
Though the bond may not be in accordance with the statute, the defendant in replevin may waive any variance from its requirements. He has a right to require a statute bond, but he may conclude not to require one. If he delays seasonably to take advantage of such defect by proper plea or motion, or pleads the general issue, he cannot after-wards take advantage of it. Simonds v. Parker, 1 Met., 508.
If the plaintiff in replevin fails to give the statute bond and the defendant neglects to abate the writ for that cause, the obligors in the bond are bound thereby. " But, if,” remarks Parsoxs, C. J., in Morse v. Hodsdon, 5 Mass., 314, "the plaintiff execute an informal bond voluntarily, and to obtain possession of the goods, and the officer thereupon deliver him the goods, the defendant in replevin may, if he please, accept the bond and pursue a remedy at law, upon it, against the obligors, unless the bond be void at common law or by statute.” Although the statute requires two sureties in a replevin bond, the party for whose benefit it is taken may waive the objection that there is only one, and, if he does, the makers of the bond cannot resist a recovery on that ground. Shaw v. Tobias, 3 Coms., 188.
As the delivery of the bond is a condition precedent to the legal service by the officer, he may be treated as a [120] trespasser if he undertake to make service without the required bond. The remedy for the party from whose possession property has been thus illegally taken, is by action of trover or trespass vi et armis against the officer thus illegally replevying, and all ordering or cooperating with him in making such unauthorized service of the writ. Garlin v. Strickland, 27 Maine, 447. " Without the legal bond,” observes Parsons, C. J., in Morse v. Hodsdon, 5 Mass., 314, " the officer may be sued as a trespasser for taking the goods from the defendant in replevin, if he choose to consider him in that light, because the injunction of the writ is a condition not performed by the plaintiff in replevin.”
The defendant, having quashed a replevin suit because the replevin bond was defective by reason of having but one surety, may move for a return of the property replevied and it will be ordered, if it shall appear that he is entitled to such return. Greely v. Currier, 39 Maine, 517; Lowe v. Brigham, 2 Allen, 429. Thus, when an action of replevin is brought in the wrong county and the writ is abated for that cause, a return will be ordered. Collamore v. Page, 35 Vt., 387.
It thus appears, that the defendant in replevin may abate the writ, when the bond is not in accordance with the statute — and that, upon his motion, a return will be ordered. So, he may, if he deem it expedient, bring an action of trespass against the officer for wrongfully intermeddling with his property, by seizing it without the required bond.
But he cannot have both remedies. He cannot have his judgment for a return, with all its incidents, and his action of trespass for taking the property thus ordered to be returned. He may elect either mode of redress and pursue it.
The original defendant in replevin having abated the suit against him and having obtained upon his motion an order for a return, which was not complied with, the inquiry arises whether he cannot avail himself of the bond, by virtue of which, though defective, the service was made.
[121] The defendant in replevin may well insist that the writ and bond should be in conformity with the requirements of law. If the bond be defective, it is the fault of the plaintiff. The defendant may take advantage of any existing defect, whether in the bond or in the writ. The party neglecting to comply with the law cannot complain if advantage is taken of his non-compliance therewith. The defendant loses none of his rights by abating a process abatable through the neglect of his opponent. " We know of no ground,” remarks Storks, J., in Fleet v. Lockwood, 17 Conn., 233, " in which he is or ought to be precluded, by interposing this plea in abatement, from asserting his title. Indeed, it is difficult to imagine how, consistently with legal principles, the defendant by pleading in abatement to the regularity of the writ, can be deemed to waive any right, which he might have established, if the cause had gone to trial upon its merits.”
The motion for a return assumes that the property has been taken upon a replevin writ, though defective by reason of a non-compliance with the statute and for that cause abated. The judgment for a return rendered, the writ of return and restitution follows, and, in case the officer holding it for service cannot find the property, then the writ of reprisal with its incidents may issue.
By R. S., 1857, c. 98, § 18, though the goods are not restored upon the writ of restitution or reprisal, the defeud-ant is not precluded " from resorting to his remedy upon the replevin bond.”
A replevin bond, with the usual condition, is broken by the withdrawal, of the writ of replevin from the hands of the officer, before the return day of the writ and the discontinuance of the suit. When the defendant in replevin is prevented from avowing his right and obtaining his judgment thereupon, by the act or fault of the plaintiff, as where the latter sues out a defective writ and the writ, is abated or he becomes nonsuit, or discontinues the action, the defendant may have judgment of i*eturn, if the position of the [122] case iii Court will permit it, or he may have his remedy on the replevin bond, for, in all such cases, there is a failure to prosecute. Persse v. Watrous, 30 Conn., 139. The case of Sherry & al. v. Foresman, 6 Blackf., 56, was debt upon a replevin bond. One of the pleas was, that the principal obligee was ready and willing to prosecute his writ of re-plevin with effect, but the Court, at the instance of the plaintiff, dismissed the cause for want of jurisdiction,-on the ground of defects apparent on the face of the affidavit and the writ; that no damages were recovered in the writ of replevin, nor was a return ordered. In delivering their opinion, the Court say, — "The fifth and ninth plea are insufficient. There is no doubt that, if the Court in which the bond was taken had no jurisdiction of the subject matter, the bond would be void and the pleas on that ground be good. But there is not the slightest ground for saying that the Court had no jurisdiction of the replevin suit. It might just as well be contended that the Court had no jurisdiction in debt or assumpsit. It is contended that these pleas are valid because they show that the replevin suit was dismissed against the will of the plaintiffs in that suit, but such dismissal is no bar to the action. Foresman and Earl, (the original plaintiffs and present defendants,) were bound to obtain judgment in their replevin suit or be liable with their sureties in the replevin bond. They have failed to obtain such judgment; and the failure, whether it was owing to defects in their affidavit and writ, or to the want of a good declaration, or to their not- having sufficient evidence to obtain a verdict, is a bréach of the condition of the bond.” If a person sues a writ of replevin for property taken on execution, and thereby has a delivery of the property, which writ is quashed as improvidently issued, the bond given for prosecuting the replevin writ with effect is valid, and the value of the property, not exceeding the execution by which it was seized, is the measure of damages. Roman v. Stratton, 2 Bibb, 199.
In Lewis v. Warren, pending in the county of Somerset, [123] the precise question here presented came before the Court for adjudication, and it was held, that an action could be maintained upon the replevin bond, notwithstanding the writ had been abated, because the bond did not comply with the statute in not being in double the amount of the property replevied. The bond was held good at common law.
The bond in the present case is good at common law. Claggett v. Richards, 45 N. H., 361; Morse v. Hodsdon, 5 Mass., 314.
The present defendants are estopped from pleading the invalidity of a bond, by means of which they were enabled to seize the property of this plaintiff. They were bound, before seizing it, to furnish the bond required by statute. It is their neglect that it was not done. For such neglect the writ was abated, as well it might be. The writ being abated, the present plaintiff had his option to bring trespass for the tortious taking of his property, or to have a return and restitution. He elected to have a return ordered. The order has not been complied with — his property has not been restored. By the express provisions of R. S., 1857, c. 98, § 18, he may, in such case, resort to his remedy upon the replevin bond. Exceptions sustained.
WaltoN, DiokbesoN, Barrows, Danfoeth and Tapley, JJ. concurred.