Easter v. Foster

• Decision Date: 02 March 1899
• Citation: Easter v. Foster, 173 Mass. 39, 53 N. E. 132 (Mass. 1899)
• Parties: EASTER v. FOSTER et al.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 39

53 N.E. 132

EASTER v. FOSTER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1899

COUNSEL

A.S. Apsey, for plaintiff.

M.F Farrell, for defendants.

OPINION

KNOWLTON J.

The defendant Foster replevied a horse from the plaintiff, and he, with the other defendants as sureties, gave a replevin bond in the usual form.He failed to enter his writ, and the plaintiff brings this action on the bond to recover for the breach of it.The jury were instructed that the plaintiff was entitled to judgment for the penal sum of the bond, and were directed to determine how much was payable, in equity and good conscience, for this breach of the condition, in order that the court might award to the plaintiff a proper execution.Pub.St. c. 171, § 10.Upon this part of the casethe defendants were allowed to introduce evidence that the plaintiff never had any title to the horse, and that it belonged to the defendant Foster.The plaintiff's exception to the admission of this evidence raises the only question before us.On a hearing to determine for how much execution shall issue for a breach of the condition of a replevin bond, it is established that any pertinent facts may be shown in diminution of the claim, unless the defendants are estopped to prove them by an adjudication in the previous suit.If the title to the horse had been put in issue and determined in favor of the defendant in the replevin suit, the judgment would have been conclusive against the defendants in the suit upon the bond.But if a return had been ordered on a...