Bower v. Tallman

The opinion of the Court was delivered by Kennedy, J. The defendants in error brought this suit, which is trover, against the plaintiff in error in the court below, to recover the value of 680 sawed white-pine board rails, which, as the defendants in error allege, belonged to them, and were converted by the plaintiff in error to his own use. The main, and, indeed, the only question, which arose on the trial of the cause was, whether the defendants in error were precluded from maintaining this action, in consequence of their having brought a prior action of replevin for the same rails, in which they declared in the detinet, but failed to recover of the plaintiff in error, though he had taken the rails, and continued to detain them, because it appeared, that before the execution and service of the writ of replevin by the sheriff, the plaintiff in error had put the rails up in a post and rail-fence erected by him on his land, and thus, as he claimed, affixed them to and made them part of his real estate, so that they were no longer the subject of a writ of replevin; and the tribunal of arbitrators, appointed under the compulsory arbitration law for the trial and adjudication of the replevin, conceiving, for this reason, that the defendants in error could not recover therein anything for the rails so put up in the fence, decided against the defendants in error, but allowed them damages for other rails embraced in the suit, taken by the plaintiff in error at the same time, and detained by him, but not used by him. The plaintiff in error, when the sheriff came to execute the writ of replevin, claimed property in all the rails mentioned in it, and gave a bond with surety to the sheriff, to answer to the suit and prosecute his claim. He accordingly appeared to the writ, in which, upon trial before the arbitrators, judgment was obtained against him for-the rails not put up in the fence by him. The court below, on the trial of this cause, instructed the jury, in effect, that the writ of replevin and the proceedings had upon it, were no bar to the recovery of the plaintiffs there; and this is the principal error complained of by the plaintiff in error here. It appears to us, that the instruction given by the court to the jury in this respect, was erroneous; because, if the defendants in error showed, on the trial of the replevin, as it would seem they did, that they were the owners of the rails, and. that they were [561] illegally taken by the plaintiff in error, they were entitled to recover damages equal to the full value of them, as also damages for their detention by him, notwithstanding he had made a fence with them on his land before the issuing or service of the writ of replevin. It is a mistake, to.suppose that a recovery cannot be had by a plaintiff in replevin, if the sheriff or other officer authorized to execute the writ, be prevented from replevying the property and delivering it to the plaintiff by the conduct of the defendant, who has put it out of the power of the officer to do so, by his having eloigned or disposed of .the property so as to render it either impracticable or improper. The Writ of replevin is not regarded in Pennsylvania as a proceeding altogether in rem, but as a proceeding also against the defendant, named in the writ, personally ; and under this view, as I take it, the practice invariably has been, to insert in the writ a summons to the defendant to appear. Weaver v. Lawrence, (1 Dall. 157). And for general convenience, and the greater security of the owners of personal property, from whom the possession thereof is improperly withheld, the action of replevin may be maintained by such owners in all cases. Ibid.; Shearick v. Huber, (6 Binn. 3); Woods v. Nixon, (Addis. 134); Stoughton v. Rappalo, (3 Serg. & Rawle 562). But even in England, where the maintenance of the action of replevin is much more restricted than in Pennsylvania, the plaintiff may recover damages from the defendant equal to the value of the property, when taken by the latter tortiously or without authority, where he has put it out of the power of the sheriff or proper officer to execute the writ by replevying and delivering the property up to the plaintiff; or where, from other causes it may have become impracticable for the officer to do so. As for instance, where the cattle are eloigned by the defendant, the plaintiff may, instead of proceeding to obtain a writ of withernam, for the purpose of taking other cattle in lieu of those eloigned, proceed in the cause, if the cattle be withheld by the defendant, and recover damages to the full value of them, as well as damages for the detention, Wilkinson on Replevin 20; or, if the plaintiff declare, that the defendant yet has, and detains the cattle, and the defendant appear, and afterwards makes default, the plaintiff shall have judgment to recover all in damages, as well the value of the cattle, as damages for the taking of them and the costs. Fitz. N. B. 69, letter L. So, if the lord distrain his tenant’s cattle wrongfully, and afterwards the cattle return back to the tenant, yet the tenant shall have replevin against the lord for those cattle, and shall recover damages for the wrongful distraining of them. Ibid, letter H. Now, admitting that the sheriff, if the plaintiff in error, who was the defendant in the replevin, had refused to give the sheriff a property bond, could not lawffully have pulled down the fence, and taken the rails thence and have delivered them to the defendants [562] in error, still, there is no more reason for saying, that the plaintiff in error should not respond to the defendants in error for the full value of the rails, in the same manner as if the plaintiff in error had eloigned them, and thus have put it out of the power of the sheriff to replevy them. To permit the defendant in replevin, by such consent, to defeat the plaintiff in his recovery of damages to an amount sufficient to indemnify him fully, at least for his loss, would be allowing him to take advantage of his own wrong, which would be contrary to an established rule of law. Hence, it is clear, that the defendants in error might have recovered the value of the rails, sued for here, in the action of replevin; and having submitted their claim thereto to the judgment of the arbitrators, who, though under a mistake of the law, decided against them, still, they are bound by that decision, and precluded from bringing another action to recover the value of the rails, as long as the judgment of the arbitrators remains in force and unreversed. After the arbitrators decided against them, their only remedy was to have appealed therefrom, within the time allowed by law, to the court in which the replevin had been commenced. Having neglected to pursue this course, the award of the arbitrators is as complete a bar to their recovery in this action, as if they had been allowed the whole amount of their claim in the replevin. The rule of law in this respect is, that it is greatly for the interest of the republic, that there should be an end to disputes, and that no one should be vexed twice for the same cause. Judgment reversed.