Cowdin vs. Stanton, 12 Wend. 120

By the Court, Savage, Ch. J. It is contended by the de-fe'ráant’s counsel that the plaintiff was not entitled to recover, because he did not show a writ of retorno hábendo returned unsatisfied in whole or in part. The revised statutes provide 2 R. S. 533, § 64 that if any writ of return, or other execution in favor of the defendant, shall be returned unsatisfied in whole or in part, an action may be brought upon the bond to recover the value of the property replevied, and the damages and costs. It has been held, in Cowdin v.

Pease, 10 Wendell, 333, in an action on this same bond, that the suit cannot be commenced on the bond until the return of the execution unsatisfied in whole or in part; but that this is matter of proof, and need not be averred in the declaration. No proof of that kind was offered on the trial. The plaintiff’s counsel insists that such proof was not necessary, the facts being admitted by the pleadings.

The plaintiff averred in his declaration that the navigation company discontinued their suit, and that the defendant had judgment that he have a return ofthe goods and chattels, and that no return of the goods and chattels had been made, but that the same had been converted and disposed of by the navigation company. The defendant, by pleading non est factum, merely put in issue the fact of the execution of the bond, and admitted all the averments which. were well pleaded.

It may be conceded, therefore, that the defendant admitted that the goods and chattels had not been returned, but were converted and disposed of by the Steam Navigation Company ; but it does not necessarily follow that they would not have been surrendered up to the officer upon a writ of retorno hábendo. By the decision last cited, and the revised statutes, no action lies until such writ shall have been returned unsatisfied in whole or in part. Such return is therefore a condition precedent, and must be shown.

I am not disposed to deny that the fact may be admitted by pleading as well as proved by evidence ; but in this case nothing more is admitted by the plea than what has been averred in the declaration, and in that nothing is said about the issuing of any writ of retorno, ' , The plaintiff having failed to prove the issuing of a writ of retorno hábendo, and that the same was returned unsatisfied,, in whole or in part, the defendant is entitled to a new trial.