Watterson v. Fuellhart

Opinion by Mr. Justice Dean, 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, — 620 — he issued execution against Thompson, which was returned nulla bona. Then plaintiff brought this suit against the sheriff, averring that the property bond accepted from Thompson was defective in form, and the sureties insufficient, and for his neglect in accepting such bond he was answerable to him in damages. The sheriff, by proper plea, denied his liability. When the case was on trial, the plaintiff offered in evidence the bond, to show that it was insufficient in form, in that it did not contain an obligation that defendant “ shall abide the judgment of the court in all things relating to the premises.” This, plaintiff argued, was the omission of any undertaking on part of the sureties that Thompson would pay the judgment against him in the action of replevin. The court, however, held that the following stipulation in the bond was a sufficient undertaking to that effect: “That if the said W. H. Thompson shall be and appear at the county court of common pleas to be held at Warren .... on first Monday of September next, then and there to make good his claim to the piano; ” that this was an undertaking by the sureties that Thompson should be successful in his defense of the suit, and if not the sureties would pay the judgment against him. 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 — 621 — the date of the bond. The question put to the witnesses by defendant’s counsel was, whether A. R. Blood, one of the sureties, was solvent or insolvent. This was objected to by plaintiff’s counsel, on the ground that witness could only testify to what the surety owned and what he owed, leaving the inference of solvency or insolvency to be drawn bjr the jury. The witness stated he was solvent. Appellant now argues, this was proving solvency by reputation. An examination of the testimony, however, shows this to be a mistake. The witness was a brother of the surety, and the latter, previous to this trial, died. The witness knew his brother’s affairs in his lifetime, and had assisted in the settlement of his estate. From his thorough knowledge, he considered him amply solvent at the date of the bond, and for some time afterwards. He could not give a list of his debts, or a list and value of his brother’s properties. But his own means of knowledge of his brother’s affairs warranted a belief, and this he testified to. As to the alleged error in admitting this testimony, we can only say, there are no known means of ascertaining, with absolute certainty, the solvency of men engaged in business; it is seldom, other than the owner knows or can know just what he owns; it is a rare case that other than the debtor knows, or can know, just what he owes. Still, men act in contracting and crediting on their judgment, because in most eases they can act on nothing else. If courts, banks, public officers and business men, did not move in important transactions until absolutely certain of the solvency of those with whom they dealt, the affairs <ff the world would stop. Partnerships, banks, corporations and individuals, believed to be solvent, sometimes fail, bringing loss and disaster to those who, in the exercise of judgment, trusted them ; but this only shows that in a comparatively small percentage of cases good judgment and care have been at fault; so here, with the most intimate knowledge of his brother’s affairs, the witness believed him solvent when the bond was accepted, and that he so continued for some time after. The testimony of the other three witnesses was of the same import; one was his banker, the other two his business partners; from their opportunities of knowledge, thejr testified as to their judgment, and further said that he was reputed solvent among business men. It was proper to give his repute, not to prove solvency, but to negative — 622 — any assertion of negligence on part of sheriff, by accepting sureties reputed insolvent. Of itself, it was not evidence, but plaintiff had offered evidence which was claimed to show notorious insolvency, and this was in answer thereto. 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 — 623 — judgment, so that, if the bond had been in form to meet his approval, it would not have availed to bring him his money from utterly insolvent sureties. 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 — 624 — phreys, supra, follows it thirty-eight years after, and in the opinion, Duncan, "J., regrets that the rule does not accord with his sense of justice, but considers it too firmly established to be set aside. But in all the cases since, the question was, as in that ease, as to the sufficiency of the bond given by the plaintiff, the replevin bond. The liability of the sheriff for the acceptance of sureties in the claim property bond, who were solvent at the time, yet when the event of the suit worked a forfeiture of their bond turned out to be insolvent, was not a question for decision in those cases. Duncan, J., in Pearce v. Humphreys, supra, says : “ If I were to be guided by my own sense of justice without regard to authority, I must own that it would seem to me that commutative justice would require a different criterion; for as the sheriff would be liable to an action of trespass for removing the goods and delivering them to plaintiff, when the defendant offers sufficient pledges on the claim of property, and could not justify under the replevin; and that as the criterion there would be their sufficiency at the time, so it ought to be where he delivers up the goods to the plaintiff in replevin. Their apparent responsibility at the time when he accepted them would have been the justest rule at first. The sheriff does all he can to make diligent inquiry; he ought not to be bound to know what nobody else knows.” The intimation here is, that the sheriff in a claim property bond is only answerable for the sufficiency of the sureties when accepted. Again, in Commonwealth v. Rees, 3 Whart. 123, Gibson, C. J., remarks, when speaking of the decisions in Oxley v. Cowperthwaite and Pearce v. Humphreys, supra: “ The construction in the case of a replevin bond, unjust as it is in its extreme breadth, which holds the officer to a measure of carefulness, unprecedented in the case of any one else but a carrier, is founded, as in the case of a carrier, in policy alone; with this difference, however, that the carrier is a voluntary agent and the officer an involuntary one.” And again, in Myers v. Clark, 3 W. & S. 535, Kennedy, J., says, the decisions in the two leading cases already cited have placed “the sheriff under a most unreasonable if not unjust responsibility.” So, although the injustice of holding the sheriff to such a rigorous liability in case of a replevin bond has been often remarked on by the court, that responsibility has in no case been denied, and it exists to-day — 625 — as in Oxley v. Cowperthwaite, supra, decided more than a century ago; except as to Philadelphia and Allegheny counties, where by the special act of 10th of April, 1873, in Philadelphia, if the sureties justify before a judge, the sheriff is relieved; and in Allegliény county, by act of 19th of May, 1871, if they justify before the prothonotary, he is relieved of the absolute responsibility which otherwise the law casts upon him. But it never has been decided in this state that he is answerable for the solvency of the sureties in a claim property bond, at the end of the trial of the replevin suit. As we have noticed, this court with much reluctance has adhered to precedent in the case of the sheriff’s liability on a replevin bond, but this is the first, case so far as we have found where it was sought to hold him to the same liability on a claim property bond. . 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 — 626 — from a contingency, which by care he could not foresee; the loss should fall on the plaintiff, the party interested, and not on him who has no interest in the subject of the litigation. 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.