i. injoncreplevin, It is’objected first, under the demurrer, that a case for equitable interference is not made by the petition; that although the proceedings in the replevin suit may be voidable for error, still, they are not void, and may not be enjoined in equity in the absence of any alleged fraud, mistake, accident or surprise. It is true, that none of these things are made the ground of the petition, nor yet, on the other hand, is it the purpose of the bill to restrain the proceedings in that suit, so much for matters occurring before and at the rendition of the judgment therein, as for what subsequently transpired. If, in a very few days after the rendition of the judgment for the return of the property, the plaintiff had tendered a delivery of the same to the defendant in the replevin suit, and he had refused to accept the property, and insisted on enforcing the alternative judgment for the value of the property by execution, we suppose, in such a contingency, it would be admitted that the chancellor would be justified in restraining the execution. And yet, this is just what the plaintiff has done in this case, except, that his offer to return the property was not in a very few days after the judgment, but within thirty-two or three days thereafter. The question then is, whether a court of equity will consider the offer to return, as having been made within a reasonable time. "What may or may not be reasonable, will, and often does depend upon circumstances, which equity will regard. The demurrer *564accepts as true the material allegations bearing upon this point. The statement is, that plaintiff resided some forty miles from the defendant, where the return was to be made; that at the time the'judgment was entered, the mare had been injured, and was lame, so that it was impossible for her to travel, and that he offered to make the return as soon as it was practicable. Now the delay of thirty days is not very unreasonable in itself, but when it is accounted for upon circumstances so controlling as that which constitutes the above excuse, it is but the dictate of common justice,, that the same should be received as satisfactory. Add then to this, the alleged fact that the plaintiff had paid all the costs of the replevin suit, including that of the execution, which had just been put into the hands of the officer, and upon which no action had been taken at the time of the proffered return of the property ; that the judgment in the replevin suit fails to specify within what time the return should be made; that the right of possession and title of the property were, as a matter of fact, in the plaintiff; that the defendant was a wrongdoer, ab initio, as respects the same; that the delay in the return thereof was the result of necessity, and not from any wish or interest to treat the order of the court with defiance; that his purpose in offering to return the property, besides complying with the order of the court, was to open the way for a new demand and recovery of the property by suit. These are such an aggregation of facts and circumstances as, in our opinion, justly calls for the equitable interference and cognizance of the court. This conceded, all the other objections raised to the bill by the demurrer, insisted upon in argument, are answered and covered thereby, and we hold that the demurrer should have been overruled instead of sustained, wherefore the judgment will be reversed and the cause remanded.
