Bennett, White & Co. v. Allen

The opinion of the court was delivered by

Bennett, J.

The grounds of the motion to dismiss the proceedings appear of record, and as the motion was, in this case, filed within the time for pleading in abatement whatever would be good cause of abatement is good cause to dismiss the action on this motion, as the defects appear of record. The question now before us, is not whether a suit could be sustained upon this bond, if there had been no plea in abatement or a motion to dismiss, and a return of the property had been awarded. I confess, however, I should find difficulty in holding that this bond has any vitality. No sum is fixed in the penalty of the bond, and it can not, as it seems to me, be made good by an application of the maxim, “ that is certain which can be rendered certain.”

The right to prosecute an action of replevin, and to take the pos *687 session of goods upon a mere claim of title, before trial, is a statutory right, and is conditional, and is only to be exercised upon the terms of the statute. The statute has expressly declared that before the officer who has the writ shall serve it, he shall take a bond in double the value of the property to be replevied, and it has also pointed out the way in which the officer shall ascertain the value of the property. In Moors v. Parker et al., 3 Mass. 310, it was fully held, that to justify the' taking of goods under a writ of replevin, it must be averred in the plea that a bond was given pursuant to the statute, and that it was not sufficient to recite that a bond had been taken which was returned into court. We can not regard the bond in this case, as given in pursuance of our statute. This must, at all events, be ah irregularity in taking the bond, and without deciding the question whether the bond is an absolute nullity, we think the judgment of the county court dismissing the action should be affirmed.