169 Pa. 612 | Pa. | 1895
Opinion by
On May 26, 1891, H. T. Knake, plaintiff’s intestate, issued a writ of replevin against one W. H. Thompson for a piano valued at $600. The writ was placed in the hands of defendant, sheriff Henry Fuellhart who, on the second day afterwards, served it on Thompson, who gave to the sheriff a claim property bond, with two sureties, in penal sum of $1,200, and retained possession of the piano. Thompson then entered appearance and plea, and on 25th of February, 1892, after trial, plaintiff got a verdict for $550, upon which judgment was entered. Upon this,
Plaintiff then offered evidence tending to show that at the date of the judgment in the replevin suit the sureties, J. R. Timmins and A. R. Blood, were insolvent; he further offered some evidence tending to show they were also insolvent when the bond was executed; to this defendant replied by evidence tending to show that at that date they were solvent, and worth far more than the amount of the bond.
As to these questions, the court submitted the evidence to the jury to inquire and find whether the sureties were sufficient when the bond was taken, instructing them, if they were, and there was a reasonable probability of their solvency at the end of the replevin suit, he had performed his duty; that he was not answerable, absolutely, for their subsequent solvency, but was bound to reasonable diligence, care and good judgment when he accepted them.
Under this instruction, there was a verdict for defendant, and plaintiff now appeals, assigning twelve errors.
The first four are to the ruling of the court admitting certain evidence as to the solvency of the sureties on 6th of June, 1891
The fifth to eighth assignments, inclusive, are to the refusal to affirm plaintiff’s first to ninth, inclusive, written prayers for instructions to the jury, as to insufficiency in form of the bond. The court, in its general charge, had already interpreted the obligation of the bond as fixing the liability of the sureties for anjr judgment obtained by plaintiff when the bond was accepted; this was a distinct denial of each of these points, and plaintiff has an exception to the general charge, which puts the error, if error there was, in shape to be corrected on appeal. The interpretation of the written bond was for the court, and not for the jury; after stating clearly the court’s view of the obligation to the jury, it would have been a wholly useless formality to have read and denied these nine points; th'e whole nine were but a repetition of the idea, the bond was not properly drawn, so as to fix the liability of the sureties in the event of an adverse judgment in the replevin suit. We agree with the interpretation of the court below. The condition, that if the principal should appear in court and there defend and make good his claim to the piano, then the bond to be void, or else to be in full force and virtue, was a full assumption of liability by the sureties ; he did appear, but did not make good his claim to the piano; in that event, the sureties undertook to pay the value, or what is the same thing, the amount of the verdict.
The several undertakings stipulated by a replevin bond constitute distinct and independent conditions, and a breach of any will constitute a forfeiture : Gibbs v. Bartlett, 2 W. & S. 33; Balsley v. Hoffman, 13 Pa. 603. The defendant, Thompson, having failed to make good his claim to the piano, there was a breach of one of the conditions, and therefore a forfeiture of the bond.
The court did not err in its construction of the bond, nor was there any fatal error in negativing the points as a whole.
"While the bond is entirely sufficient in form, it is doubtless satisfactory to plaintiff to know, even if it had not been, no particular harm would have resulted, for he has shown by abundant proof the insolvency of the sureties at the date of the
The controlling question in the case is raised by plaintiff’s eleventh point, and answer of court thereto, as follows:
“It was not enough that the sheriff should have accepted a suret}' or sureties deemed by him fairly sufficient at the time. It was his duty to regard the fact that the final determination of the replevin suit might be delayed for months or possibly years, during which delay, by the accidents of business or fortune, the obligors, thus deemed by him fairly sufficient when accepted, might become utterly worthless.”
To this the court answered: “ In this point, the word ‘ fairly ’ is italicized, and I want to have it so understood. I affirm that point. I have already stated. to you the same thing, that in determining the sufficiency of the surety, the sheriff should have kept in mind the fact that his obligation was to run until the determination of the replevin proceedings. Did he have belief, in good faith and upon reasonable ground, that the surety was not only able at the time to pay the amount of the bond, but had such a credit as to be likely to be good to the determination of the proceedings? ”
In effect this point and answer thereto are embraced in appellant’s ninth and tenth assignments of error. The same instruction, but with more elaboration, was given throughout the general charge. The sureties, at the date of judgment in the replevin suit, were insolvent; it is established by the decided weight of the evidence, that when accepted they were solvent. What was the measure of the sheriff’s responsibility in the acceptance of the sureties?
In Oxley v. Cowperthwaite, 1 Dall. 349, and Pearce v. Humphreys, 14 S. & R. 23, it is laid down as a settled rule that, as to a replevin bond tendered by the plaintiff for the delivery of the property to him, the sheriff is answerable to the defendant, not only for the sufficiency of the sureties when the bond is taken, but when the judgment has determined the property to be in defendant. And so the law has stood. An examination of these cases will show that they followed the English rule, where the writ lay, only in cases of goods distrained for rent in arrears; Oxley v. Cowperthwaite was decided in 1788; Pearce v. Hum
. The cases cited in suits on replevin bonds are not necessarily applicable to the claim property bond. The replevin bond is a statutory requirement; without it, the writ cannot be served; if the writ be executed, the situation of the parties is changed; the plaintiff has the possession of the disputed property before his right is judicially determined; the defendant is deprived of the possession of what may afterwards be found to be rightfully his; the change of status is altogether in favor of plaintiff and prejudicial to defendant, during the pendency of suit. The tendency of the proceeding, if the utmost rigor in exacting sufficient sureties on the replevin bond, be not enforced would be to tempt the unscrupulous to assert unfounded claims to chattels, and secure possession by the tender of worthless bonds to the sheriff., But if defendant tender a bond with sureties, at the time sufficient, then the suit is at once turned into a chose in action, resulting in a judgment in favor of plaintiff, if the right be in him. The parties, so far as possession of the disputed property is concerned, stand as before the writ, but, if the right be determined in favor of plaintiff, he has' personal judgment against defendant, ripe for execution, and also recourse to the property bond.
We are not inclined to extend a hardship, only tolerated because of established precedent, to a case not clearly within the precedent. There is no imperative reason which requires us to hold that a faithful officer, when he executes, a replevin writ, shall, at the same time, insure the plaintiff against loss
We therefore decide in this case, that if the sheriff, in the exercise of care and judgment, accepted this claim property bond, with sureties, at the time solvent, or that he had reason to believe solvent, and there was no apparent danger of future insolvency, and permitted defendant to retain possession, he did all that the law required of him ; the plaintiff can exact nothing more. This was, in substance, the law, as declared by the learned judge of the court below, both in his general charge and in his answers to points; in so declaring, he committed no error. All the assignments are therefore overruled, and the judgment is affirmed.