Gardiner v. McDermott

• Decision Date: 27 July 1878
• Parties: J. ABORN GARDINER, Deputy Sheriff, v. MICHAEL MCDERMOTT et al.
• Court: Rhode Island Supreme Court

12 R.I. 206

J. ABORN GARDINER, Deputy Sheriff, v. MICHAEL MCDERMOTT et al.

Supreme Court of Rhode Island.

July 27, 1878

When a replevin bond has been given in accordance with Gen. Stat. R.I. cap. 224, § 3, and the plaintiff in replevin does not enter his suit, an action may be brought on the bond without first obtaining judgment for return and restoration as provided for by Gen. Stat. R.I. cap. 224, § 5.

The object of a replevin bond is to indemnify the defendant in replevin.

The statutory provision for a judgment for return and restoration on complaint, if the replevin suit is not entered, is for the benefit of the defendant in replevin, not of the plaintiff nor of his sureties.

DEBT. On motion to arrest judgment.

Beach & Osfield, for plaintiff.

Charles E. Gorman, for defendant.

MATTESON J.

This is an action of debt on a replevin bond.

The defendant McDermott replevied from the plaintiff, a deputy sheriff, certain goods and chattels attached by the latter and in his custody, as the property of one Patrick O'Grady. Prior to the service of the replevin writ, the officer charged with its service took from the defendant McDermott the bond in suit, signed by him as principal and by the defendant Durfee as surety, with condition, as required by statute,^[1] to prosecute the writ of replevin to final judgment and pay such damages and costs as the defendant in such writ should recover against the plaintiff therein, and also to return and restore the goods and chattels replevied in like good order and condition as when taken, in case such should be the final judgment on such writ.

The defendant McDermott did not, nor did any one in his be half, enter his writ of replevin in the Court of Common Pleas, to which it was returnable, and prosecute it to final judgment, nor did he, nor any one in his behalf, restore the goods and chattels replevied to the plaintiff. The plaintiff brought suit upon the bond, and the jury returned a verdict for the plaintiff on the first count in his declaration which assigned, as breaches of the bond, the neglect to enter and prosecute the writ of replevin to final judgment, and the neglect and refusal to return and restore the goods and chattels replevied to the plaintiff. The defendants thereupon moved in arrest of judgment upon several grounds, the last of which, and the only one urged at the hearing, was that the count contained no allegation that the plaintiff had ever obtained a judgment for the return and restoration of the goods and chattels replevied.

Gen. Stat. R.I. cap. 224, § 5, provides, that " whenever any plaintiff in replevin shall neglect to enter and prosecute the suit, the defendant may upon complaint have judgment for a return and restoration of the goods and chattels replevied, and reasonable damages for the taking, with such reasonable costs as may be adjudged by the court, and a writ of return and restoration thereon accordingly."

The defendants contend, that if the plaintiff in replevin neglects to enter and prosecute his suit, the defendant therein must file a complaint and obtain a judgment under the section of the statute quoted before he can maintain a suit upon the bond, or, in other words, that such a judgment is a condition precedent to the maintenance of a suit upon the bond.

We do not think that the allegation that the plaintiff had obtained a judgment for a return and restoration of the property replevied was essential. Two breaches of the bond are alleged: 1. The neglect to enter and prosecute the suit to final judgment. 2. The neglect and refusal to return and restore the goods and chattels replevied. If either of these is sufficient to render the defendants liable, it is immaterial whether or not the other is well assigned. Perhaps if the only breach alleged had been a neglect to return the goods and chattels, the obtaining of a judgment for such return, and an allegation to that effect, would have been requisite. That question, however, it is not necessary to determine, for the neglect to enter and prosecute the suit is also averred, which is a distinct and complete breach of one part of the condition. The several requirements of the condition of a replevin bond are to be regarded as distinct and independent conditions, and a breach of either is a forfeiture of the bond. Morgan v. Griffith, 7 Mod. 380; Perreau v. Bevan, 5 B. & C. 284, 300, 302; Gibbs v. Bartlett, 2 W. & S. 29. 33; Persse v. Watrous, 30 Conn. 139, 146. And see also Dias v. Freeman, 5 Term Rep. 195, 197; Gwillim v. Holbrook, 1 Bos. & Pul. 410; Turner v. Turner, 2 Brod. & B. 107, 111; Ex parte Boyle, 2 Dowl. & Ry. 13, 14; Axford v. Perrett, 4 Bing. 586; Harrison v. Wardle, 5 B. & Ad. 146; Lindsay v. Blood, 2 Mass. 518; Smith v. Whiting, 100 Mass. 122, 123.

Nor do we think that it was obligatory upon the plaintiff to make complaint and obtain a judgment for a return under the statute, before bringing suit upon the bond. The case chiefly relied upon by the defendant is Pettygrove v. Hoyt, 11 Me. 66, 69. In that case the condition of the bond and the statute, so far as it related to a judgment for a return, were the same as in this. The defendant Hoyt, the plaintiff in replevin, had neglected to enter and prosecute the suit. Pettygrove, the plaintiff, and...