Newland vs. Willetts, sheriff, &c.

Same Term. Before the same Justice. Newland vs. Willetts, sheriff, &c. The court will allow a new replevin bond to be filed, nunc fro twnc, where the one given upon the execution of the writ was defective. This was a motion by the defendant to set aside a writ of replevin, and all subsequent proceedings on the part of thé plaintiff, for irregularity. It appeared from the return of the coroner who served the writ, that the bond taken by him upon the execution thereof had but one surety, instead of two, as required by the statute. And the return did not state the addition, residence, or occupation of the surety. After the serviceofnotice of this motion, the defendant executed a new bond, with two sureties, and gave notice to the plaintiff’s attorney of the giving of such bond to the coroner, with the additions, residences and occupations of the sureties. The plaintiff, upon an affidavit stating that fact and that the irregularity, if any, was the fault of the coroner, made a cross motion for leave to amend the coroner’s return, by adding thereto the names of the sureties, with their additions, &c. A. Child, for the plaintiff. D. D. Field, for the defendant, cited 2 R. S. 431, § 7; 18 Wend. 581, 583; 19 Id. 632. [MAJORITY — Edmonds, J.,] Edmonds, J., decided that the motion to set aside the writ was regular; but that, as it is usual to allow a new bond to be filed, and as one had been filed, he should deny the motion of the defendants; their costs of the same, $10, to abide the event of the suit; the plaintiff to have no costs in any event. And the defendant to have the usual time to except to the sufficiency of the sureties in the new bond. See 2 R. S. 556, §§ 33, 34.