Miller v. Warden, Frew & Co.

Mr. Justice Paxson delivered the opinion of the court, January 4th, 1886. It would consume much time to little purpose to discuss seriatim the numerous assignments of error in this case. A few of the principles involved will be briefly considered. It was alleged and pressed with much earnestness here that by the arrangement between the defendant below (plaintiff in error) and Waring Bros., an entire loan of $30,000 was contemplated ; that the whole of that sum was necessary to relieve Waring Bros, from their financial difficulties, and that the defendant gave them the bill of sale for the 24,000 oil barrels for that purpose and no other. If such was their purpose and understanding, it was not communicated to Warden, Frew & Co., plaiutiffs below, who advanced Waring Bros, the sum of $10,000 upon the faith of the pledge of 8,000 of said barrels. Moreover, the fact that the original bill» of sale of 24,000 barrels was changed into three bills of sale of 8,000 barrels each is persuasive evidence that the intention was that the money should be borrowed thereon in such amount and from such persons as it could be procured from. The object of the proceeding was to enable Waring Bros, to raise money to meet their necessities, and the defendant was willing and did transfer his barrels to them for that purpose. We think it clear that the plaintiffs advanced their money on the faith of the bill of sale. It was so testified to by several witnesses, and they are not essentially contradicted. The fact that the advance was made pending other negotiations to raise the whole slum is not material. The plaintiffs may have expected to be re-imbursed out'of the fruits of such negotiations, but this in no waj^ affects their advance of the $10,000. The most that can be made of it is that they advanced for a temporary purpose a part of the sum pending negotiations for the whole. The negotiation with the bank never proceeded so far as a loan; pending said negotiation Waring Bros, failed and the whole matter fell through. This part of the defence goes to the merits; what remains is technical. It was contended that the sheriff never having replevied the said barrels, nor made return to the writ of replevin, the said writ is dead and this suit cannot be maintained. The lack of a return by the sheriff constitutes no defence for the reason that there was a general appearance by _ the [308] defendant. Such appearance waives tbe service of the writ: Zion Church v. St. Peter’s Church, 5 W. & S., 215; Hall v. Law, 2 Id., 121 ; Hatch v. Stitt, 16 P. F. S., 264; Mosher v. Small, 5 Barr, 221, and see 1 Troubat & Haly, 272. The action of replevin lies in Pennsylvania for the property of one person in the possession of another, whether the claimant ever had possession or not, and whether his propertj- be absolute or qualified, provided he has the right of possession: Harlan v. Harlan, 3 Harris, 507 ; see also Mead v. Kilday, 2 Watts, 110 ; Young v. Kimball, 11 Harris, 195. In this case the plaintiff showed title and property in the barrels, and the fact that the sheriff was prevented from taking them is no bar to the maintenance of the action. The defendants by 'their own act procured the restraining order from the District Court and thus pi-evented the sheriff from seizing the barrels. In such case the plaintiff is entitled under the authorities to recover damages to the full value of the property, as also for its detention: Bower v. Tallman, 5 W. & S., 556. The writ of replevin in Pennsylvania is not a mere proceeding in rem, but it is a proceeding also against the defendant in the writ personally, and the practice is to insert in the writ a claim of summons for the defendant to appear: Weaver v. Lawrence, 1 Dallas, 157; Shearick v. Huber, 6 Binn., 3; Stoughton v. Rappalo, 3 S. & R., 559. ' It was further contended that at the time the 110,000 loan was made the barrels called for by the warehouse receipt had not been separated from the 24,000 barrels of the defendant of which they formed a part, and so individuated that a writ of replevin could have been issued at that time. The defendants below went to trial upon three pleas, viz.: (1) property; (2) bankruptcy, and (3) the absence of a seizure by the sheriff. In no one of them is there an averment that the 8,000 barrels were not individuated, or were a part of a larger lot. On the contrary, the pleas admit the identity of the barrels described in the writ. The pleas refer to “ the said oil barrels in the declaration mentioned,” and claim that they are the property of the defendant, or that the sheriff had not taken the said 8,000 barrels, &c., &c. We need not elaborate this point; it is too plain. The fact that Miller, the defendant, had been adjudicated a bankrupt, and had effected a composition, is no bar to the action. The plaintiff had no notice of the proceedings in bankruptcy. The bankrupt law (Act of 1867) provides only that the provisions of the composition “ shall be binding on all the creditors, whose names and addresses, and the amounts of the debts due to whom, are shown in the statement of the .debtor produced at the meeting in which the resolution shall [309] have been passed, and shall not affect or prejudice the'rights of any other creditors.” Aside from this the plaintiffs were not creditors of the defendant, and their names do not appear-in his schedules. Further, the Court which it is "now claimed has exclusive jurisdiction over this controversy has declared that it had no jurisdiction. The restraining order was' dissolved upon that very ground. That judgment has never been reversed, and until it is it is binding upon the parties, even- if erroneous. This is so in the case of the judgment of a Justice of the Peace : Kass v. Best, 3 Harris, 101. The foregoing covers so much of the assignments of error as we think require discussion. We find nothing in this record to justify us in reversing the judgment, and it is therefore Affirmed.