10 Watts 265 | Pa. | 1840
The opinion of the court was delivered by
As to the question raised by the first error, it would seem to be inferrible, from the plea put in by the defendant’s counsel below, that it was not made there at all, and has been laid hold of, for the first time, by the counsel employed to attend to the case here. For under the second plea, it is perfectly clear that no such question could arise; and, indeed, it may well be doubted, whether such plea be applicable to the cause of action, as set out in the declaration of the plaintiff below, or could be made so under any circumstances whatever, unless the defendants below intended
The objection to the validity of the bond is, that the condition, among other things, provided for a “ return of the goods, if a return thereof should be adjudged by law;” that this stipulation the sheriff,in executing the writ of replevin, had no authority to require of the defendant, upon the latter’s claiming property in the goods, and retaining the possession of them by giving the bond; that it is, therefore, against the law, and renders the whole instrument void. It must be conceded, that the clause here objected to, ought to have been left out of the condition of the bond, if it were for no other reason than that it appears to be one which cannot, possibly benefit the sheriff or the plaintiff in the replevin, nor yet prejudice the defendant therein or his sureties. The plaintiff in the replevin could derive no advantage from it, because he could not claim to have a return of the goods, according to the terms of the condition of the bond, unless a return thereof were adjudged to him by lato. But this could not possibly be; because in a replevin, if the plaintiff declare that the defendant yet hath and detaineth the goods, as-b'e must do wherever the defendant claims property, and retains the possession of them, by giving bond with surety to the sheriff, as was done in this case, and the plaintiff gains his suit, he shall have judgment to recover all in damages, as well the value of the goods as damages for the taking of them, and his costs; Fitz. N. B. 159-60; and also C. J. Hale’s note, at the bottom of page 159, c. Easton v. Worthington, 5 Serg. & Rawle 131. Indeed, it seems to be the settled law, that the judgment in replevin, when rendered for the plaintiff, can only be for damages and costs; Gilb. on Replev. 160-1; but if for
Now as to the second error, it may be that upon demurrer the declaration of the plaintiff below would have been held bad, because he did not set out therein the proceedings and judgment had in
Judgment affirmed.