Rathbun v. Ranney

Campbell J. Ranney sued Rathbun in trespass for taking away a horse from his possession in Kent county. Rathbun justified under an execution issued in a replevin suit in Ottawa county, whereby he was directed to make return to Levi Shackleton and Alfred A. Cain, of a horse and other property replevied from them by one Bridget Bennett. The Circuit Court ruled that the execution was unlawful, and gave judgment for the value of the horse and interest by way of damages. Exception is taken to the rulings. The only statutes which in express terms allow executions, in ordinary cases, to run into different counties, are sections 4442 and 4444 of the Compiled Laws. By the former it is declared, that, whenever judgment is rendered in any Court of-record, execution to collect the same may be issued to the sheriffs or other proper officer of any county .of this state.” Section 4444 provides that, “ such execution may be either 1st, against the goods and chattels, lands and tenements of the party against whom such judgment was recovered ; of, 2nd, against the body of such party, in the cases authorized by law.” This statute does not apply to a writ of return, and embraces only the ordinary executions upon money judgments, which are to be “ collected” by execution. It is claimed, however, that it extends by analogy to all kinds of executions upon all judgments. The statute of replevin gives no such directions, ' and we are remitted to the old law, to ascertain whether the various writs come under any necessary connection. Under the old practice in replevin in England, where a writ de retorno habendo was issued for a defendant, it was a good return that the chattels had been eloigned, or removed from the county; and the defendant then was remitted to his capias in withernam, or his remedy against the sureties. And a plaintiff in replevin was also compelled to resort to his capias in withernam, to seize other goods of the defendant, if the property was [387] removed from the county before the writ was served. A removal from the county in either case lost the party his claim to seize the property to which he was entitled. — 3 Bl. Com. 149; Tidd's Pr. 1038; Bacon's Ab. “Replevin” E. 5; Fitzh. N. B. 74 F. Our statute does not provide, in any case, for a capias in withernam properly so called; but when the writ of replevin cannot be served upon the property, it allows the plaintiff to declare and proceed to judgment; and on such judgment, besides damages and costs, he is entitled to have it adjudged that the property be replevied and delivered to him without delay, and in default thereof that he recover the value as assessed, § 5034. We have here, then, a judgment containing the same requirements as to the specific property, as those provided where a defendant becomes entitled to return. The The statute, by section 5035, provides a special form of execution in such a case, in favor of the plaintiff, combining a command to collect the damages and costs, with a precept to replevy the goods. But in case the property is not found within the county, instead of allowing a further replevin in another county, it directs a levy of the value of the property out of the goods and chattels, lands and tenements of the defendant. This is in substance applying the principle of the capias in withernam, and recognizing the locality of the proceeding against the property as confined to the county. The analogies, then, are not such as to indicate the propriety of extending the operation of the statute on executions beyond its fair intent as expressed by its language. The Circuit Court was right, therefore, in holding the writ invalid. There is nothing in the finding which will enable us to say that the rule of damages was incorrect. It appears, indeed, that Shackleton and Cain had obtained a judgment of return against Bridget Bennett for the horse in controversy, but such a judgment does not necessarily show title in them as against any one else, or even general ownership against any one. Ranney’s title may, for anything that appears, be good against [388] all of them. He is not in any way connected with the other parties by the finding, and there is nothing to distinguish them, so far as he is concerned, from any other ordinary trespassers. The judgment should be affirmed, with costs. The other justices concurred.