
    Fielder Burch v. William Dowling.
    Upon a replevin-bond, the plaintiff may recover, although there has been no judgment for a return of the property; but the plaintiff must show that he has sustained damage by the plaintiff in replevin not prosecuting his writ with effect.
    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. Both parties appeared at the return of the writ of replevin, and the defendant having laid a rule on the plaintiff to declare by the rule-day, the cause was continued until the next term, (namely, March term, 1838,) when the plaintiff was non-prossed on the rule, and judgment was rendered against the plaintiff for costs, but no judgment was entered up for a return of the property, nor any avowry or suggestion for a return filed by the defendant. Whereupon, the present suit was brought, and the breaches assigned are, that the plaintiff in reple-vin did not prosecute her writ with effect, did not return the goods, and did not pay the costs.
    
      Mr. Hoban, for the defendant,
    contended that the plaintiff' could not recover without showing a judgment for a return, and prayed the Court so to instruct the jury ; and cited 7 Wheeler, 594; Moore v. Shield, December term, 1824, (2 Cranch, C. C. 529.)
    
      Mr. Bradley, for the plaintiff,
    cited Smith v. Hazel, in this Court, November term, 1826, (3 Cranch, C. C. 55) ; McDaniel v. Fish, at December term, 1818, (2 Cranch, C. C. 160); Dias v. Freeman, 5 T. R. 195; 7 Wheeler, 569.
   The Court

(Thruston, J.,

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

Mr. 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.

But 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.

Verdict for the plaintiff, $43.13.  