Smith v. Whiting
Massachusetts Supreme Judicial Court
Contract on a replevin bond conditioned that the defendant Whiting should “ prosecute said replevin to final judgment,” &c.
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Contract on a replevin bond conditioned that the defendant Whiting should “ prosecute said replevin to final judgment,” &c. At the new trial in the superior court, before Rockwell, J., after the decision reported 97 Mass; 316, the same facts were proved or admitted which were found at the former trial, showing, among other things, that the replevied property consisted of two impounded heifers, and that the defendant Whiting, then the plaintiff in replevin, never entered his writ nor prosecuted the action of replevin further than to give the bond and to receive the heifers from the officer.…
1Opinion of the CourtChapman, C. J.
1. The motion to amend the defendants* answer was addressed to the' discretion of the presiding judge; and his decision is not subject to exception.
2. Even if the amendment had been made, the evidence offered did not tend to- establish a legal defence. The defendant had sued out a writ of replevin against the plaintiff, under the authority of which he had taken the cattle from the plaintiff’s possession, upon giving the bond in suit. As he failed to prosecute his action, the plaintiff is entitled to judgment on his bond for nominal damages, at the least, because the condition of the bond is…
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- Boom v. St. Paul Foundry & Manufacturing Co.Supreme Court of Minnesota · 1885
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