Supreme Court of Rhode Island, 1862

Potter v. James and Others

Supreme Court of Rhode Island · Decided September 6, 1862 · Ames

7 R.I. 312

Counsel

Thurston Ripley, for the plaintiff: — After a judgment in replevin for a return and restitution of property taken on the writ, and for the statute damages for detention, the liability of the sureties on the replevin bond is fixed, and it is no cause for abatement of a suit against them on the bond, that the execution has not been issued against the plaintiff in replevin; or if execution has been issued, that the same has not been returned. I. The terms of the bond required by statute are, that the plaintiff shall prosecute his writ of replevin to final judgment, pay such damages and costs as the defendant shall recover against him, and return the property replevied in like good order and condition as when taken, if such shall be the final judgment in the suit. II. As soon as final judgment has been rendered, the sureties become liable, and the only defence which is open to them on the merits is, that of performance of the condition of the bond. III. The defendant in replevin, in whose favor final judgment has been rendered, is not limited to his remedy by the execution against the plaintiff in replevin; he may suspend this remedy and sue the bond, or he may proceed against the principal by seeking to enforce his execution, and at the same time commence his proceedings against the sureties; any satisfaction of the execution will of course enure to the benefit of the sureties. IV. The defendant in replevin is situated similarly to the holder of a promissory note, upon which there is an endorser whose liability has become fixed; he may proceed against either or both, at his option; and the pendency of a suit against one is no bar to an action against the other. If the defendant in replevin is bound to exhaust all remedies against the plaintiff in replevin before he can look to the sureties, the language of the condition of the bond should be altered so as to postpone the liability of the sureties, by express terms, until after the return day of the execution issued in his behalf. The point has been decided in conformity with the positions above taken, both in England and in the courts of this country. Perreau v. Bevan, 8 Dow Ry. 72; Perreau v. Bevan, 5 Barn. Cress. 284; Turner v. Turner, 2 Brod. Bing. 107. That the plea is not a sufficient answer. Sevey v. Blacklin, 2 Mass. 541 ; Lindsey v. Blood, 2 Ibid, 518. T.A. Jenckes, for the defendants: — This is an action of debt upon a replevin bond, given by the defendants and taken by the marshal of the District of Rhode Island, in a suit in the Circuit Court of the United States. The bond is in conformity with the statute of this State, and a writ is sued out of this court against the sureties in it, after a judgment for the defendants in the original suit, and pending proceedings upon a writ de retorno habendo, issued out of the Circuit Court upon its judgment. It is submitted that the suit is improperly brought, because, — I. There is no breach of the condition of the bond, pending process in the replevin suit. The case in the Circuit Court was pending when the writ in this case was sued out. Both this court and the Circuit Court have decided the point, that a case is pending while process in it is pending, although it be process of execution on final judgment. Kendall v. Winsor, 6 R.I., 453; he must make demand of payment of the maker, and give notice to the endorser. But the plaintiff in this case contends, that the instant final judgment is entered for him as defendant in replevin, he can sue the bond and charge the sureties, without demand upon the principals, and without notice to the sureties. Such certainly cannot be the intent of the statute. An examination of the English cases cited shows, that our statute was intended to be more liberal to the sureties. The bond required by the English law is, to prosecute the suit "with effect," i.e., with success; and the sureties thereupon become charged as soon as the judgment is entered for the defendant. The condition required by our statute is, "to prosecute to final judgment and to pay," c. Having prosecuted to final judgment, there must be a further default proved, before the sureties become charged. How proved? By showing that the principal has not responded to the process issued upon the judgment against him. Until this proof is made by the use of the process to which the defendant is entitled by his judgment, it is submitted that no action upon the bond is maintainable. See Pemble v. Clifford, 2 McCord, 31: "A scire facias on a replevin bond cannot be resorted to, unless a writ pro retorno habendo be issued, and returned elongata. " Cowden v. Pease, 10 Wend. 333: "A suit on a replevin bond cannot be brought unless a writ of retorno habendo is returned unsatisfied, in whole or in part."

Opinion of the Court

Ames, C. J.

The plea in abatement questioned by this demurrer is confined to the first count in the declaration, and to the writ so far as it relates to the matter contained in that count. The breach of the replevin bond laid in that count is, the nonpayment of the damages and' costs recovered by the present plaintiff, as defendant in the replevin suit; and the question raised by the pleadings is, whether a suit will lie upon the replevin bond to recover such damages and costs, until after the return day, or at least the return non est, of the execution issued in the replevin suit. By the condition of the bond, the defendants bound themselves, amongst other things, to pay such damages and costs as the plaintiff, then defendant in replevin, might recover against the plaintiffs in replevin. The recovery here intended refers to the judgment, qnd not to the execution, *317 which is the means only of enforcing it. It is because these means may fail, that the statute requires, in addition, a bond with sureties to be given, to ensure the performance of the judgment. The liability of the plaintiffs in replevin was immediately consequent upon the judgment against them, enforceable at any moment by imprisonment of their persons, or levy upon their property, under the execution .which at once issued upon the judgment. By the terms of the bond sued, their liability and that of their sureties was precisely the same, — the bond giving an additional remedy and further security for it; and neither the principals nor the sureties can set up any defence, except performance of the conditions of the engagement into which they have entered. There is no such analogy between a replevin and a bail bond as is supposed by the counsel for the defendants; and the peculiar rights and obligations of bail can shed no light upon the liabilities of either the principals or sureties of a replevin bond.

We notice, too, that this plea in abatement follows two pleas in bar ; and we have already decided, in a case too, embracing on both sides parties to this, that a plea to the merits is a waiver of all pleas in abatement subsequent to it. Gardner v. James and others, 5 R. I. Rep. 242.

For these reasons the plea must be overruled.

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