
    George Bates vs. American Surety Co.
    No. 70164.
    May 23, 1929.
   BLODGETT, P. ,1,

Action for chan-cerization of a bond in an action of replevin. Heard jury trial waived.

Plaintiff in this action, a deputy sheriff, was defendant in a replevin action brought by James J. McKittrick in this Court, numbered 49860.

Judgment for defendant was entered in the replevin action No. 49860 for return and restoration of the goods replevined and costs December 20, 1922. McKittrick was unable to make return of the goods in as good order and condition as when replevied, and this present action was commenced against the present defendant as surety upon the replevin bond.

There have bene several phases of this litigation. McKittrick, upon discovering that he had no remedy in an action of replevin against Bates, who as deputy sheriff had attached the goods for one Gilbert Moni, brought a bill in equity against Bates and others endeavoring to have title in said goods declared to be in him. This relief was denied in an opinion of our Supreme Court in case of Jam.es J. McKittrick vs. George Bates, et al., Eq. No. 6519, May 9, 1925. In the present action Mc-Kittrick attempts to have the question of the title to said goods determined by this Court.

For plaintiff: Pettine, Godfrey & Cambio.

For respondent: Comstock & Canning, William A. Gunning.

Bates claims the matter of title cannot now be passed upon due to failure on the part of McKittrick to establish his title in a court of law.

A careful reading of the opinion tiled in Equity Cause No. 6549, supra, leads this Court to the conclusion tha't Mc-Kittrick is barred from setting up such a defence. The sole question now is as to the value of the goods at the time the replevin action was begun, viz.: March 9, 1921.

The goods replevined consisted of furniture, chinaware, &c., used in a rooming house. In the writ of re-plevin McKittrick placed the value of same at $300. The testimony as to value varied greatly between Moni and McKittrick, the only witnesses as to value.

Decision for plaintiff for $200 and costs.  