2 Watts 431 | Pa. | 1834
The opinion of the Court was delivered by
The condition of a replevin bond is to prosecute with effect, and return the goods in case a return be awarded. But the
A distinction was attempted at the argument, between the rent and the costs of the replevin which were recoverable from the surety as damages, previous to the 17 Car. 2; and it was therefore supposed that the right to them is independent of the form of the judgment. They might doubtless have been recovered in this suit without aid from the statute, had not the bond been discharged ; but the defect is not that the rent is irrecoverable from the surety eo nomine, but that nothing is recoverable. A surrender of the goods under an appropriate judgment, would have exonerated the surety from the costs of the replevin, as well as from the rent; and by his being deprived of an opportunity to take the benefit of it, the bond has ceased to be a security for either of them. Were the penalty forfeited, the plaintiff might be let in for his whole demand, at least to the value of the distress. But the objection is, and it is a decisive one, that the bond is saved and nothing is due.
Judgment affirmed.