Mooney commenced an action of replevin against Myers before a justice of the peace. The affidavit omitted to state the value of the property replevied, but a separate cause of action, filed by the plaintiff before the writ issued, contained an" averment of its value. The return to the writ shows, that the property in controversy was taken by the officer and delivered to the plaintiff, and that the plaintiff entered into bond as required by law, but the bond was not returned by the constable and filed among the papers in the case. The parties appeared before the justice at the trial, and judgment was given for the plaintiff. The defendant appealed to the Circuit Court. After several continuances, the cause was dismissed by the Court and final judgment given for the defendant.
The judgment of the Circuit Court is defended on the ground, 1. That the affidavit on which the writ issued was wholly defective in not stating the value of the property; and 2. That the bond required by the statute to be given by the plaintiff was not returned to the justice.
P. Sweetser, for the plaintiff. W. Wright, for the defendant.The first point is not tenable, as was decided by this Court in the case of Perkins v. Smith, 4 Blackf. 299. The second is equally untenable.' The statute under which these proceedings were had, Rey. Code, -1831,- pp. 306, 7, does not require the bond to be returned by the constable. If the plaintiff do not prosecute his writ to effect, or if the defendant succeed,in his defence to the suit, it is made the duty of the constable to assign the bond to , the .defqndant, that he may commence suit thereon. Until final judgment be rendered, he may retain possession of the bond, and the nature of the judgment will determine the disposition he is to make of it.
There was no irregularity in the proceedings for which the suit should have been dismissed.
Per Curiam.The judgment is reversed with costs. Cause remanded, &q.'