Burch v. Dowling

Decided March 15, 1840

Debt on replevin-bond, for not prosecuting the writ with effect, for not returning the property, and for not paying the costs. The plaintiff, Burch, was a constable, and had taken certain goods in execution to satisfy a debt due by to They were replevied by one Isabella Martin, who, with the defendant and another, executed the bond, in the penalty of $75, for which this suit was brought.

Decided 1840-03-15

¶1The Court

(Thruston, J.,

¶2absent,) refused to instruct the jury as prayed by Mr. Hoban.

¶3Mr. Bradley then contended that the plaintiff was entitled to recover the whole amount of the debt mentioned in the execution, whatever might be the value of the goods seized ; or that the presumption is that the officer took enough to satisfy the debt, and casts the burden of proof on the defendant to show the contrary. 11 Geo. 2, e. 19.

¶4But the Court said that the plaintiff must show that he sustained damage by the plaintiff’s not prosecuting her replevin with effect; and must show the amount of his damages.

¶5Verdict for the plaintiff, $43.13.