3 Pa. 13 | Pa. | 1846
We cannot say that the witness, Christian Shenlc, was improperly received. He was no more than the plaintiff’s wagoner, intrusted with the management and disposition of the team, whatever may have been understood by those who heard him speak of it as his own; and it cannot be perceived that he could be benefited or prejudiced by the event of the suit. A wagoner, in charge of a team, usually conducts himself as if he were the owner of it, and is sometimes allowed even to exchange the horses which compose it, as the witness seems, in this instance, to have been ; for that he was so, may be inferred from the ratification of the bargain on which the action is founded. But it follows not that he had an interest of his own in the transaction, or any part in the ownership of the horse sought to be recovered; or that he would be liable to the plaintiff in the event of his failure to recover.
Nor is there more weight in the objection to the evidence of force in the recaption, on the ground that the issue involved a question, not of force, but of property. To determine the right of property, the whole transaction, with its circumstances, was proper for the consideration of the jury. For properly taken by force, the plaintiff may waive the trespass, and maintain trover and replevin for the value; but such a waiver does not exclude evidence of circumstances inseparably connected with the transaction. Besides, damages beyond the value of the property may be given for the taking and detention, even in replevin ; as is shown in Gilbert on Replevin, 59, 160.
But the direction that the property was not revested in the defendant by his demand of it and offer to restore it, because he repossessed himself of it by force, was wrong. Each party had expressly reserved a right to put an end to the bargain by giving
We might stop here, were it not proper to reassert the principle of our own decisions on a point of practice, which was thought to be entirely settled by them. In replevin, at the common law, only the defendant can have judgment de retorno habendo, because from him only can the property be taken to be delivered to the opposite party; and even he can have it only where he has not prevented the execution of the writ in the first instance by interposing a claim to the property. When the plaintiff fails, the law places the parties exactly where they stood when suit was brought: -where he succeeds on the issue of property, he recovers the whole in damages. So is the common law clearly laid down in Fitz. N. B. 159, 160; and that the stat. Westm. 2, made no difference in this respect, may be seen
Judgment reversed.