Whiley v. Sherman

3 Denio 185

• Court: New York Supreme Court
• Decided: July 15, 1846
• Status: Published

Opinion

By the Court, Jewett, J.

To entitle the plaintiffs to recover it was only necessary for them, under the pleadings, to prove the execution of the bond by the defendants, and the value of the goods seized and delivered to the claimant. They proved the bond, but failed to prove the value of the property, the court having decided that such testimony was improper until the plaintiffs had produced the attachment and shown that the justice had jurisdiction to issue it. This decision is supposed to be sustained by the case of Homan v. Brinkerhoff, (1 Denio, 184.) In that case it appeared affirmatively by the evidence, that the justice did not acquire jurisdiction to issue the attachment, and that it was void. It was not there held that in ordet to recover upon such a bond it was necessary for the plaintiff to show that the attachment was regularly issued, but only that where it was proved that the attachment was void, the plaintiff could not recover upon the bond. The judgment must be reversed.

Judgment reversed.