3 Whart. 123 | Pa. | 1838
The opinion of the court was delivered by
It seems strange, that the assignment of a replevin bond under the 11 Gr. 2, c. 19, should be different in its consequences from the assignment of a bail bond under the 4 Anne, c. 16. There is in these. statutes, not only a similitude of subject, but a remarkable coincidence of provision; yet the English judges, followed by our own, began by holding ■that the sheriff might be pursued after the assignment of a replevin bond, even for ulterior insufficiency of the sureties, while they held him freed from responsibility by the assignment of a bail bond. The construction in the case of a replevin bond, unjust as it is in its extreme breadth, which holds the officer to a measure of carefulness, unprecedented in the case of any one else but a carrier, is founded, as in the case of the carrier, in policy alone; with this difference, however, that the carrier is a voluntary agent, and the officer an involuntary one. In almost all other relations, no more is required from an agent compelled to act, than good faith, and an ordinary share of diligence. The hardship of the rule, however, would present no objection to it, were not the indications of policy more than fulfilled by it. According to the dictum of Justice Heath in Hindle v. Blades, (5 Taunt. 225,) the mischief before the statute was, that the sheriff frequently accepted men of straw; and it doubtless was the generality of the practice, which induced a severity of construction that is found by experience to have exceeded the exigence. That the original construction was unnecessarily severe, is proved by the relaxation it has received, to an extent which requires no more than an ostensible, or, at most, an actual sufficiency when the bond was executed; still the avowant has not been compelled to choose his recourse betwixt the sheriff and the sureties. It is said by Sergeant Williams, on what authority I know not, for none is quoted for it, that he may sue the sheriff after action on the bond; and we are content the law be held so. So far as the construction has gone, it remains untouched with us by precedent of our own; and British decisions since the revolution, are not a warrant for us to overturn what our predecessors erected, on the basis of authority which bound them at the time. Now, our act of 1772, followed the 11 G. 2, not only in its terms, but its construction. In Oxley v. Cowperthwaite, (1 Dall. 349,) and Pearce v. Humphreys, (14 Serg. & Rawle, 23,) it was broadly asserted, and without contradiction since, that the sheriff is re
Judgment affirmed.
Cited by the Court, 7 Watts, 431.
The money was in fact received of him after the argument, and before the judgment.