13 Pa. 603 | Pa. | 1850
The opinion of the court was delivered by.
The leading question presented by the record is whether the defendant can in this action upon the replevin bond be made answ.erable for the damages recovered by the now plaintiff, as defendant in the action of replevin, as well as for the value of the goods eloigned ? B.uehler, who was the surety of Hoffman and the only party really defending, insists that his liability is’ to be measured by the value of the property replevied and the costs of the former action, leaving to Balsley his execution upon the first judgment as the only means of making the damages there assessed for him. This defence proceeds upon the notion that the condition of the replevin bond is simply for the return óf the chattels, in the event of a judgment de retorno habendo being rendered against the plaintiff jn the .action of replevin, and for which alone the surety is responsible. But this is a misapprehension. At common law the sheriff in executing a writ of replevin required, as in other cases, plegii de prosequendo, which for the most part were-merely nominal. This continued until the enactment of the Stat. of West. 2, 13 Ed. 1 C. 2, the third section of which provided that thenceforth “the sheriff or bailiffs should not only receive the plaintiffs pledges for the pursuing of the suit before they make deliverance of the distress,' but also for-a return of the beasts if the return be awarded.” It was followed in England by the Stat, 11 Geo. 2 C. 19, and in Pennsylvania by the act of 21st March, 1772, each of which directed the sheriff and other officers executing a replevin of a distress for rent to require from the plaintiff a bond, with sureties in double the value of the goods distrained, conditioned to prosecute the suit with effect and without delay, and for the due return of the goods distrained; in c^se a return shall be awarded. Though, like the English, our statute is in terms confined to cases of replevin of distresses fof rent, its requirement of a replevin bond has in practice been extended to every instance where goods are for any cause made the subject of replevin, and the condition being the same, whether taken under the statute or irrespective of it, the bond is of course- open to the same construction. What that construction should be, as defining the' extent of a surety’s
Other instances of the application of this principle are furnished by Chapman vs. Butcher, Cath. 248, 519, where it was ruled that the stipulation to prosecute with effect is not satisfied by a recovery of judgment in the lower court, which was reversed in error though no judgment was ever rendered in favor of the defendant; Vaughan vs. Norris, C. T. Hard. 137, where the-bond was deemed unsatisfied unless the plaintiff followed his judgment to support it in a superior court into which it had been removed; Axford vs. Perrett, 4 Bing. 586, where a failure to- prosecute the plaint for two years was adjudged a" forfeiture of the ■ obligation, though no judgment of non pros, was signed in the county court; and Harrison vs. Wordle, 5 B. & Adol. 146, in which it was said there was a breach of the'condition by-neglecting to prosecute
The next inquiry is, what is the extent of this condition, and how far will it oblige a surety to answer for the short comings of his principal ? This too is I think answered by a series of cases which leave little to be added as original reasoning. It will be sufficient therefore to bring to view some of these in elucidation of the point principally litigated by the parties, and which show the liability of the bail is only limited by the penalty of his bond, though in particular cases it may-be less than that amount. This is the doctrine of Branscombe vs. Scarborough, 6 Adol. & Ellis, N. S. 13, and Gainsford vs. Griffith, 1 Wm. Saund. 58, N. 1,
which was double the value of the goods. Sergeant Talfourd. moved to set it aside because, as he said, the decisions on the point being conflicting, the plaintiff ought not to. recover against the sheriff more than.the value of the goods distrained, and he cited the cases I have referred to, with others. But Tindall, C. J., speaking for the court, said, “It is not to be disputed that the sureties singly would be liable to the amount of the penalty of the bond; and in Hefford vs. Alger, 1 Taunt. 218, which is subsequent to Evans vs. Brander, it was held that the two together are liable to no more; after that double decision .in this court we ought not to throw the matter open again, by laying down a different rule for the sheriff, who is responsible on the failure of the sureties.” The question may therefore be considered as at rest in England, and I think it is equally settled with us. Of our adjudicatiohs upon this point perhaps Phillips vs.1 Hyde, 1 D. 439, may be noticed as the earliest. There, after a de retorno habendo and return of elongata, the defendant in the replevin was permitted, in an action on the replevin bond, to recover his costs in the first action, which,must have been by force of the condition .to prosecute with effect, as is shown by Mr. Justice Kennedy, in Tibbal vs, Cahoon, 10 W. 232. In the latter case the defendant had retained the goods under a claim of property, which being found for him, he was also held entitled to recover the costs in an action on the bond, though of. course there was no judgment de retorno. If it were held, said the court, that the surety in such
This brings us to .the inquiry, whether the judgment 'recovered by Hoffman vs. Balsley was properly admitted as a set-off against the sum recoverable under the replevin bond. The action was properly brought in the name of the, sheriff. Not having been
The offer to defalk was also resisted on the ground of want of notice. Certainly under the short form of pleading here used special notice of the matter of set-off ought to have been given. But whether the requisite notice was. or was not given the record does not enable us to say. No such averment was specifically made on the trial of the cause, and consequently a production and proof of notice was not requisite. It is only when called for that it is produced, and without the objection made it cannot appear of record how the fact was. This has been ruled recently more than once. As however the cause goes down for another trial the defect, if it exists, may be remedied. I may add, while on this part
I see no objection whatever to the evidence, the’ admission of which is the subject of the first bill of exception. One question was of the value of the' boat at the time it was replevied. But surely this might be shown' not only by witnesses who spoke at the precise period, but also -to those whose knowledge was confined to a time prior or subsequent to the moment the property was taken by the sheriff. This testimony might be of less, value than the other, but that is no reason for its entire exclusion.- • With the accompanying explanation it might in some degree assist the jury to correct conclusions, and this was sufficient to warrant its admission. But being received, it appears to. me the evidence offered to rebut it should also have -gone to the jury. The plaintiff’s proof on this pointwas, if I understand it, confined to the day on which the-, replevin was executed. The defendants were properly permitted to speak of a subsequent .period. Besides they introduced some new facts tending to show the boat had been abused and injured while in Balsléy’s possession. Should not then the plaintiff in reply have been suffered to introduce counter proof of the actual condition of the boat,-and tó show that at the time spoken of by his adversary’s witnesses herjworth was greater than as estimated by them ? I know upon this point much is necessarily. left to the discretion of the trying tribunal; but still a rejection of testimony on the ground of its being offered out of time may be the subject of error, and I may repeat that judges should be very tender in excluding proof for that reason, unless it be clear the party has been in default. As the evidence offered 'and rejected seems to have been in clear contradiction of that given by the defendant, and not imperatively called for in chief, I should feel inclined to reverse the judgment on this score. But the case goes back on another ground.- On the second trial the difficulty made in this particular on the first may be avoided.
I may add, in answer to an objection made against the admissibility of Prince’s testimony, that it was not of special matter within the meaning'of the. rule requiring notice. It was a legitimate answer to.a.part of the plaintiff’s case necessary to be made o.ut by him.- .
After all, the great question is as I have said the extent of the sureties’ liability under his bond. That being settled, it is hoped that the parties may be enabled to arrange their quarrel without further litigation.
Judgment reversed, and a venire de novo awarded,
Section 3, Harrison’s Digest, p. 5847 — Replevin.