¶1The opinion of the Court, Shepley, C. J., Wells, Rice, Appleton and Hathaway, J. J., was drawn up by
¶2Before serving a writ of replevin, the officer is required by the statute to take a bond to the defendant, with sufficient sureties, in double the value of the property replevied, (the statute is imperative,) his precept also gives him similar directions; and if he serve the Avrit without taking such bond as the law prescribes, and the defendant in re-plevin suffer damage thereby, upon the plainest principles of law and justice the officer should be liable to the extent of the injury thus occasioned.
¶3The case finds that the value of the oxen replevied was thirty-five dollars, the bond, therefore, should have been seventy dollars. The misfeasance of the defendant’s deputy is admitted by the default. If the bond had been legally sufficient it would have been security to the defendant in re-plevin only to the amount of its penalty, and although, in this case, the plaintiff may have been injured more than that amount by the replevin suit, yet the penal sum of such bond as the officer should by law have taken, is all the damage that the plaintiff could have sustained by his misfeasance. Upon the facts presented, therefore, the plaintiff may have judgment for seventy dollars and interest from the date of his writ.