10 Watts 232 | Pa. | 1840
The opinion of the court, which contains a full statement of the case, was delivered by
This was an action of debt, brought by Charles W. Cahoon against Charles M. Tibbal, the plaintiff in error, upon a bond executed ón the 12th day of November 1838, by Jonah Dib
The condition of the bond given by the plaintiff in the replevin, and the plaintiff in error here, as his surety, is, that the plaintiff there should prosecute his suit with effect and without delay, and also make return of the cow, if a return thereof should be adjudged by law, &c. But it is clear, that the defendant in the replevin, by claiming property in the cow, and giving bond to the sheriff, with surety, to appear in court to answer the plaintiff, and establish his right thereto, became entitled to retain the possession of the cow himself, until the question of property should be decided against him; and having retained the possession accordingly, that part of the condition of the bond, providing for a return of the cow, consequently became inoperative by the act of the defendant himself in the replevin, so that under it he could not well claim either payment of his costs, or a return of the cow afterwards. But still, notwithstanding it was thus rendered unavailing, was not the plaintiff bound to comply with the first part of the condition, requiring him to prosecute his suit with effect, and may not this cover the costs in the replevin adjudged to the plaintiff below in this action? The authority to maintain the action of replevin in this state seems to be founded upon an act of assembly passed in 1705, whereby it is enacted, that “it shall and may be lawful for the justices of each county, in this province, to grant writs of replevin in all cases whatsoever where replevins may be granted by the laws of England, taking security as the said law directs; and make them returnable to the respective courtsof common pleas in the proper county, there to be determined according to law.” 1 Dallas’s State Laws 59; Weaver v. Lawrence, 1 Dall. 150-5. Notwithstanding this act expressly confines the granting of replevins to cases where by the laws of England they may be granted, which can only be for goods taken either wrongfully, oras a distress; Com. Dig. tit. Replevin, A; tit. Pleader, 3 K. 1; yet usage commencing probably with the act itself, has extended the writ of replevin to every case where the plaintiff claims goods in the possession of another. Weaver v. Lawrence, 1 Dall. 151; Shearick v. Huber, 6 Binn. 3; Wood v. Nixon, Addis. 134; Stoughton v. Rappalo, 3 Serg. & Rawle 562. In practice, therefore, it is clear that the terms of the act have not been strictly adhered to; most probably because it was conceived that the writ of replevin was the only effectual remedy that could be resorted to and applied, in many cases where goods claimed by the plaintiff happened to be in the possession of a worthless defendant, as it either enabled the plaintiff to obtain the immediate possession of them, or otherwise good security for the value of them, upon his establishing his right to the recovery-ofthem. Seeing, then, that the plaintiff has been thus indulged with the advantages attending the remedy by replevin, over that of trespass or trover in such cases,
Judgment affirmed.