Rockey v. Burkhalter

The opinion of the court was delivered, by Read, J. On the 1st of February 1869, John Roekey brought an action of replevin against Erwin Burkhalter, in the Common Pleas of Lehigh county, to April Term 1869, No. 48, and the return of the sheriff was “ summoned the defendant February 4th 1869; February 13th 1869, property claimed and bond entered by defendant Erwin Burkhalter, and property left to remain in his hands,” by which the plaintiff’s property in the goods was absolutely gone. On the 9th of February 1869, the same plaintiff commenced an action of trover and conversion, in the District Court for the city and county of Philadelphia, against the same defendant by capias for the same goods and chattels, which were the subject of the said action of replevin, and this is the case before us. On the trial under the general issue the learned judge permitted the defendant, under objection, to give in evidence the record of the replevin suit, and it was admitted that the chattels for which this suit was brought, were the same as those in the action of replevin, and the defendant gave in evidence the claim property bond of defendant and others to John P. Miller, sheriff of Lehigh county, [223] dated February 13th 1869, in the penal sum of nine thousand dollars. The learned judge charged the jury “ that the action pending in the Court of Common Pleas for the county of Lehigh was a bar to the present suit, and that the jury must therefore find for the defendant.” All this evidence was clearly admissible under the general issue: 1 Chitty’s Pl. 498, 472; Hunt v. Cook, 19 Wendell 463. This evidence established the fact, that the property of the plaintiff in the goods, if he had any, was extinguished by the claim made by the defendant and the property-bond given to the sheriff. The property vested in the defendant, and the right of the plaintiff to the property itself was absolutely gone: Fisher v. Whoollery, 1 Casey 197. The court committed no error, and the judgment is affirmed.