Weed v. Hinton & Rogers — 7 Hill & Den. 157

Majority

p. 157

Weed vs. Hinton and Rogers.

Headnote

Under the statute relating to actions of replevin in the city and county of New-York, (Sess.Laws of 1839, p. 316,) if the sureties in the replevin bond fail to justify as therein required, the defendant is entitled to judgment of discontinuance, without excepting to them.

Hinton distrained the goods of Weed in the city of New-York, for $11 rent arrear, Rogers making the distress as marshal. Weed thereupon brought this action of replevin, and, on serving the writ, a notice of two days was given to the defendants of the time, place and officer, when, where, and before whom the plaintiff’s sureties would justify. After several adjournments for the plaintiff’s benefit, his sureties failed to justify, and the circuit judge made an order directing the sheriff to deliver the property to the defendants. In the mean time the property had got into

p. 158

the hands of the plaintiff, and the sheriff, being unable to comply with the judge’s order, settled with Hinton by paying him the value of the goods. The sheriff also assigned the plaintiff’s bond to the defendants.

jS. P. Nash fy N. Hill Jr., for the defendants,

now moved for judgment of discontinuance against the plaintiff.

J. N. Platt, contra.

By the Court,

The first objection made to the motion is, that there has been no exception to the sufficiency of the plaintiff’s sureties. (2 R. S. 527, §§ 28-30.) But the answer is that the sureties have failed to justify in pursuance of, the replevin law relating exclusively to the city and county of New-York, where this action was brought. (Stat. 1839, p. 316.) That law in effect makes an exception for the defendant; and after the sureties have failed to justify under the law, it cannot be necessary to make another or more formal exception, and try the same matter over again.

It is then said that the plaintiff may proceed in the action although the property has not been delivered to him. (2 R. S. 525, § 19.) That is so in cases where the property has been removed or concealed, so that the sheriff cannot make deliverance; (§§ 10, 11;) and also where the defendant or some other person makes a successful claim of property in the goods. (§ 13.) But when the plaintiff fails to justify his sureties under the law of 1839, the defendant is entitled to a judgment of discontinuance.

The defendants have been paid the value of the property by the sheriff; but that only puts them in as good a condition as though the property had been restored to them under the judge’s order. It does not affect their right to the present motion.

Motion granted.