Hershey v. McLaughlin

Opinion by Orlady, J., The effect of the condition in the replevin bond given by McLaughlin was that he should prosecute his suit with effect and without delay; and in the event of that trial being adverse to him, then to pay the damages assessed as the value of the property affected by the writ: Commonwealth v. Litvitz, 14 Pa. Superior Ct. 278. When he abandoned his claim on the trial of the action of replevin and suffered a voluntary nonsuit, it was a judgment against him, that determined the title of the property to be in Walker. On the trial of the scire facias on his replevin bond, the offer to prove that he had a pending suit against Walker in another forum was properly rejected by the court, there being no record of any judgment accompanying the offer and it being admitted that there was not a judgment or adjudication in his favor. While the judgment on the replevin bond was cautionary only (Clark v. Morse, 142 Pa. 311), it was nevertheless a valid judgment, founded upon a voluntary confession. The scire facias thereon was to liquidate the [90] amount due by tbe defendants. Tbe offered set-off was- not of the same nature or grade of security as tbe judgment. No .principle of set-off would embrace such an uncertain claim, which, as far as was apparent, might ultimately be decided in the Chester county courts against the party seeking to use it as a set-off: Good r. Good, 5 Watts, 116; Penna; R. R. Co. v. Davenport, 154 Pa. 111. The defendants offered to prove that he tendered a replevin bond, which the sheriff refused to accept, and refused to execute the writ unless a bond with surety was given containing a clause authorizing a confession of judgment, which bond was not required by any rule of court. This evidence was properly rejected since the defendants gave the bond in suit and there is nothing in this record to show that it was not voluntarily given. Neither the liability, nor duty of the sheriff, nor the validity of tbe bond can be questioned when it is voluntarily given. They could have refused to give the bond demanded by the sheriff and determined that officer’s liability in an action against him. The real purpose of the bond is to indemnify the sheriff, and whatever form of security is intelligently and freely agreed upon by the parties is binding upon them: Clark v. Morss, 142 Pa. 311. The assignments of. error are overruled, and the judgment is affirmed.