Commonwealth v. Rees

The opinion of the court was delivered by *Gibson, C. J. It seems strange, that the assignment of a replevin bond under the 11 Gr. 2, c. 19, should be different in its consequences from the assignment of a bail bond under the 4 Anne, c. 16. There is in these. statutes, not only a similitude of subject, but a remarkable coincidence of provision; yet the English judges, followed by our own, began by holding ■that the sheriff might be pursued after the assignment of a replevin bond, even for ulterior insufficiency of the sureties, while they held him freed from responsibility by the assignment of a bail bond. 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 the carrier, in policy alone; with this difference, however, that the carrier is a voluntary agent, and the officer an involuntary one. In almost all other relations, no more is required from an agent compelled to act, than good faith, and an ordinary share of diligence. The hardship of the rule, however, would present no objection to it, were not the indications of policy more than fulfilled by it. According to the dictum of Justice Heath in Hindle v. Blades, (5 Taunt. 225,) the mischief before the statute was, that the sheriff frequently accepted men of straw; and it doubtless was the generality of the practice, which induced a severity of construction that is found by experience to have exceeded the exigence. That the original construction was unnecessarily severe, is proved by the relaxation it has received, to an extent which requires no more than an ostensible, or, at most, an actual sufficiency when the bond was executed; still the avowant has not been compelled to choose his recourse betwixt the sheriff and the sureties. It is said by Sergeant Williams, on what authority I know not, for none is quoted for it, that he may sue the sheriff after action on the bond; and we are content the law be held so. So far as the construction has gone, it remains untouched with us by precedent of our own; and British decisions since the revolution, are not a warrant for us to overturn what our predecessors erected, on the basis of authority which bound them at the time. Now, our act of 1772, followed the 11 G. 2, not only in its terms, but its construction. In Oxley v. Cowperthwaite, (1 Dall. 349,) and Pearce v. Humphreys, (14 Serg. & Rawle, 23,) it was broadly asserted, and without contradiction since, that the sheriff is re [127] sponsible for tbe sufficiency of the sureties, at tbe determination of the replevin; and though we pay respect to foreign authority in the development of nascent principles, we dare not join it in those modern changes which have uprooted some of the deepest foundations of the law, or use it for encouragement even to correct established error. But though we may not follow foreign footsteps to get away from an erroneous construction, we may justifiably restrain it to cases already within it. Holding then the sheriff eventually responsible for the ultimate sufficiency of the sureties, we are prevented by no *precedent from holding the avowant’s action against him to be suspended while proceedings towards satisfaction by judgment and execution against them are in progress. In Moore v. Bowermaster, (6 Taunt. 379,) time given to a plaintiff in replevin, was not allowed to discharge the sureties; but that is not the case of time given to the sureties themselves, and its effect upon the responsibility of the sheriff, would consequently present an open question. It may, however, be affirmed on principles of unquestionable analogy, that as the sheriff’s liability is a resulting one, and that as the bond is his security, as well as that of the avow-ant, he is bound to manage it so as not to impair or depreciate it. Now, it will scarce be doubted that one of the obligors in this instance, .was discharged by taking judgment against the other. That such will be the consequence at the common law, was settled in Williams v. M'Fall, (2 Serg. & Rawle, 280); and the act of the sixth of April, 1830, is applicable in its second section, to judgments confessed by one of two or more several obligors in a several action, for there could not be a joint one, and not to a judgment confessed by one of two or more joint and several obligors, sued jointly, which is the case provided for in the first section. Indeed neither justice nor. convenience requires,' that the plaintiff in a joint action, be suffered to sign judgment against one, and reserve the liability of the others, for actions to be brought thereafter. Why not as well allow him to go on in the action pending, Avhen the expense would be less, the incongruity no greater, and the remedy in eases of simple contract more secure from prejudice by lapse of time ? The exoneration of this obligor, therefore, might be made a subject of successful resistance. But we put the decision on broader ground. It has not been made judicially certain, that satisfaction could not be had of the judgment debtor ;* and the plaintiff therefore has not a case. Judgment affirmed. Cited by the Court, 7 Watts, 431. Footnotes [*] The money was in fact received of him after the argument, and before the judgment.