John Wetherbee vs. Nehemiah Colby, 6 Vt. 647

The opinion of the court was delivered by Rovoe, J. — The declaration should allege every substantive fact which is necessary to make out a complete right of recovery. The demurrer assumes that a demand of the property replevied, by the officer holding the execution, is such a fact; or if it is not, that, at the least, actual notice to one or both of the obligors, of the issuing of the execution, and the delivery of it to the-officer, should be deemed an essential fact. It is clear that no demand upon this defendant, or notice to him, can be required.

His situation was unlike that of a joint receiptor of property attached, because, in that case, all the re-ceiptors are equally the bailees of the officer, and are supposed to retain possession of the property. But here the proper-erty was redelivered, under the writ of replevin, to Houghton alone. The defendant was a mere surety in the replevin bond, without any right of-interference with the original suit, or with the property. A demand on Houghton would of course include the notice to him which is contended for.

And if such demand is considered necessary, it must be upon the ground that a right construction of the statute requires it. The demand would therefore be an official duty of the officer under the law. And if an official act, then hjs return must be legal evidence of its performance. The objection would still remain, that the declaration does not directly allege that a demand was made, but only sets forth a return of it by the officer. This is declaring upon the evidence, and not upon the fact itself, and in this respect, if a demand was necessary, the declaration would seem to be defective.

I understand the general rule to be, that if the return states positive and distinct acts of the officer, such as an arrest, or the attachment or demand of property, it is necessary in pleading to count upon the act itself; but if the return is of a negative character, as that "of non est inventus, nulla bona, and the like, it is sufficient merely to set forth the return. The necessity of alleging demand or notice, remains to be considered. The whole'proceeding, in this species of replev-in, including the form of the replevin bond, is regulated and prescribed by statute.

The .bond is to be conditioned as follows : — •“ That if the said (Houghton in this instance) shall “return the said goods and chattels, to be replevied to him, “ by virtue of said writ, so that they may be taken on an execution, which may issue on a judgment, to be recovered on “ the aforesaid attachment; or shall otherwise discharge said “judgment, within sixty days from the rendition of the same, “ then this obligation to be void: otherwise of force.” It is to be returned into the court to which the original process is made returnable, and there kept on file. “ And if the plaintiff or “ plaintiffs in the original process, shall recover judgment there“on, execution shall issue within thirty days.

And if the de- “ fendant or defendants, in said process, shall not, within the “ lile of the execution, return said goods or chattels, so that “ the same may be taken in custody, or otherwise discharge the “ said execution ; then the clerk, on request, shall deliver to “ the plaintiff or plaintiffs, the said bond,” &c. By these enactments, it is required on the part of the creditor or plaintiff, as a condition precedent to any right of action on the bond, that he shall recover judgment in the principal or original suit, and that execution shall issue thereon within thirty days.

And by this last requirement, we are doubtless to understand, that the execution shall be delivered to a proper officer to be enforced. Then follows the act to be performed by the original defendant, to prevent a forfeiture of the replevin' bond. He might return the property replevied, within the life of the execution, so that it may be taken in custody thereon, or in some other manner satisfy and discharge the execution, within sixty days from the rendition of the judgment.

Here is an option afforded the defendant, and it is doubtless true, that if, by the act or default of the plaintiff, he is prevented from doing one of the acts enjoined, he is thereby excused or discharged from the other also. Now the obligation of the defendant to do one or the other act is apparently absolute, as well by the condition of the bond, as by the enacting clause of the statute; and in order to determine whether it is still subject to the implied condition, of demand or notice, we must ascertain what is meant by returning the property.

If nothing else can in any case be admitted, than an actual production of it to the officer holding the execution, there is strong reason for acceding to "the construction which is called for; as the duty of the defendant might otherwise become extremely difficult of performance. But the direction to return the property is expressed in general and qualified terms. The return is not required to be made to any particular place or person, nor is there any provision that the property shall be taken upon the execution; it is enough if it may be so taken.

Therefore, when the defendant does all which he reasonably can, under the circumstances as they may exist, to place the property in a situation to be levied on, it might be sufficient for him. If the property is demanded, he must of course expose or produce it to the officer; and an ability and readiness to produce it, at his own residence or some suitable place, is the least which the duty of the defendant, under any circumstances, would seem to render necessary. Whether more than this would ever be required of him, when no actual demand is made, we have no occasion, at this time, to decide.

As the statute has specified but two prelimi-nai7 requisites to the right of suing on the bond, we must regal'd these as sufficient in the first instance, and are not authorized to add another. Consequently the demand, or notice insisted on, need not be alleged in the declaration. But when the two statute requisites are properly stated, and it is further alleged, as in this case, that the property was not returned, nor the execution discharged, the defendant must be required to plead to the action.

And if his defence is confined to the matter of performance, contemplated by the statute, he will set forth, either a satisfaction and discharge of the execution, or such facts as may constitute a sufficient return of the property. It will be perceived, from what has been said, that a case is supposable, where the defendant, by a reasonable preparation and endeavor to turn out the property, may save the forfeiture of his bond, and the plaintiff, by omitting a demand, may lose the benefit of the bond in the first instance, and ultimately, perhaps, the chance of securing the property.

And here it is not expected, as a consequence of this decision, that the practice of demanding the property will be generally discontinued. The expediency of making" a demand, and the hazard of neglecting it, will be obvious in every case, where the defendant, by retaining possession or control of the property, shall be in a condition to comply with it. Judgment of the county court affirmed.