Caldwell v. West

The opinion of the court was delivered by Randolph, J. West, one of the defendants in this suit, having in the year 1834 sued out a writ of replevin against Edmund Taylor and John C. Bx-iggs, gave, with Estall as his security to the plaintiff, then Sheriff of the county of Gloucester, the bond which is the subject of the pi’esent controversy; it being the common replevin bond usually taken.from the plaintiff and his surety, requiring of the former to prosecute his suit and return the property, if return thereof be awarded. The bond having become forfeited by the failure of the plaintiff to prosecute his suit, and a return of the property having been adjudged by the court, and a writ de retorno habendo, duly issued and returned, the present action was brought on the bond. At the trial, several objections were taken by defendant’s counsel, and the decision of the court below as well as the verdict of the jury being against them, the same points have been again raised on the present motion for a new trial. I. In the first place, it is insisted that as the bond was given to the plaintiff as Sheriff, the action should have been brought by him in that character. This bond is taken under the fourth section of the act of 1795, Rev. Laws 213, and is principally for the security of the Sheriff; for if he neglect to take — 418 — the requisite security, he is made liable for the value of the goods ; yet the bond is also for the benefit of the plaintiff. The subject matter thereof and of this suit, does not so partake of, or relate to the office of the Sheriff, that the action must be in his name of office, but it may be in his individual name, omitting the rest as. mere description of the person, in the same way as the official character of an executor, guardian, or trustee, may be omitted when added to the name of a payee or obligee, in a note or bond. 1 Spencer 58; 1 Com. Dig.; Abatement, E. 21. II. The next exception is, that the venire should have been 'special; that is, as well to try the’ issue as to assess the damages, &c. The transcript shows a special award of such a venire : but the writ itself, which was to summon a special or struck jury, is in the common form, to try the matter in difference between the parties. This objection cannot prevail on a motion for a new trial, nor could it indeed on a writ of error, for it is amendable under the statute of amendments and jeofails. 8 Hen. 6 c. 12; Rev. Laws 137 § 2; 1 Com. Dig. Amendment 580 (h), 2 Arch Rrac. 273; 2 Ld. Raymond 1143. III. The third objection is, that the bond fixes the valuation of the goods taken by the recital therein that they had been valued according to law at four hundred dollars, and that the evidence which tended to increase that valuation, should have been rejected by the court. By the 12th section of the act Rev. Laws 215, where replevin is brought for goods taken by distress for rent, the Sheriff is required to ascertain the value of the goods taken by the oath or affirmation of a witness or witnesses, but in the fourth section there is no such requirement; but as the Sheriff is liable, if he take insufficient security, the practice in analogy to the case where there has been a distress for rent, is to cause the goods to be appraised, and to take bond in double the value thereof. It may be doubted whether the valuation under either section would have any effect, except to save the liability of the Sheriff as to the amount of the security, and in the absence of other evidence to prove the value of the goods at the time taken. But the condition of the bond is to prosecute the suit, and in case of failure to re-deliver the property, not to pay its appraised value; and if the party fails to re-deliver, the — 419 — obligors in the bond must be liable for all damages resulting therefrom, and the mere recital of the extra official valuation, can have no material effect in the present action, and of course cannot exclude the evidence objected to in relation to the valuation of the goods taken. IY. In the fourth place, it is insisted that the court erred in not permitting the defendants to disprove the Sheriff's return of elongata to the writ de retorno habendo, or to shew that the Sheriff made no inquiry for the property. The return of the Sheriff was under his official oath, and if false, he may be liable therefor, but the return itself cannot be disputed in this action; for it is the judgment of return in the original action which entitles the plaintiff to proceed against the pledges to prosecute, and it is questionable whether the writ of return be necessary at all. “ It is not often issued except to ground proceedings on the replevin bond, or against the Sheriff; and in the former case it is not absolutely necessary, for the pledges may be proceeded against without issuing a writ de retorno habendo.” Wilkinson on Replevin 210; Willes 6. And in Gilbert on Replevin, it is stated page 80, that “the withernnam is awarded on the elongata return,” “ for, the Sheriff is liable for a false return, who is a person sufficient to answer the party.” And in page 82, it is said, th.e withernnam cannot be on a surmise, but only when the eloign ment is found by inquest, or returned above by the proper officer. The party whose goods are taken in withernnam cannot plead that either he did not eloign, or that the beasts are dead in pound; for that is contrary to the elongata returned by the Sheriff, and not to be denied ; but if false, he has his remedy against the Sheriff for false return, Gilbert 98. See also Phillips v. Hyde, 1 Dall. 439. In an action on the bond, no averment of the issuing of a writ of de retorno habendo, and return of elongata is necessary; but such is necessary when the Sheriff is prosecuted, for not taking sufficient security. 4 Wend. 616. Y. The fifth objection is, that the bond is void for the want of authority in the fourth section to take a replevin bond in any case; or if in any, then only where the goods have been taken by distress. — 420 — The Sheriff was required at common Jaw to take pledges of prosecution from the plaintiff in replevin; afterwards by the statute of Westminster, c. 2, (13 Ed. 1 & 2, § 3,) which is substantially embraced in our fourth section, the Sheriff was required to taire pledges not only to prosecute the suit, but also to return the goods, in case a return should be adjudged. If the pledges were taken in a court of record, a scire facias issued against them in case of default; but this did not lie if the court was not one of record, or if the plaint was from the Sheriff under the statute of Marlbridge; Gilbert 64, 177; Wilkinson 12; 3 Mod. 56. This mode of proceeding is now obsolete; and instead of taking pledges of record, a bond with surety is taken as well under the statute of Westminster 2d, as under that of 11 Geo. c. 19, § 23 (the same as our § 12). Blackett v. Crissop, 1 Ld. Ray 278; 3 do. 143; Gilbert 67; Wilkinson 121; do. 144-5; 6 Bac. Abr. 58-9, lit. Replevin & Avowry D. The act of Westminster 2, c. 2, requires the Sheriff to “ receive of the plaintiff pledges,” cfee. and our 4th section says, “shall take of the plaintiff sufficient security,” the one being a mere translation of the other, and according to Ld. Holt in 1st Ld. Raym. 278, “ such a bond will answer the intention of the statute that requires pledges, for the obligors are sureties; and plegii in the old boolrs signifies sureties.” But the statute provides that “the person who distrains” shall have his remedy by writ, in case the Sheriff neglects to take security. From this and other similar phraseology in the statute, it is argued that the act, or at least the security under the fourth section, can only apply to cases of distress. No doubt but formerly the action of replevin was in a great measure confined to the retaking and delivery of goods talren by distress. Judge Blackstone, even, states that the action only applies to recover goods wrongfully taken by distress. 3 Com. 146. But in this, Mr. Chitty has very clearly shewn by the numerous authorities referred to in his note, that the learned commentator was mistaken. See also 7 John. 140, and the opiuion and cases referred to by Judge Platt; also, 6 Halst. 373, and 1 Wend. 109. Replevin for goods lies where trespass de bonis asportatis can be maintained; whether the action shall be confined in this state — 421 — within that limit, as it has been in New York with some regret on (he score of authority, Marshall v. Davis, 1 Wend. 114; or whether under the language of our first section, we shall feel constrained to go with the Massachusetts Courts. 5 Mass. 284; 15 Do. 859; 16 Do. 147, and extend the remedy to all cases of unlawful detention, it is not necessary to decide in this suit; (a) but to determine whether a bond may be taken under our fourth section, it is necessary to consider the whole act together. Thus by the first section, if the goods and chattels of any person be taken and wrongfully detained, the Sheriff is required to replevy and deliver them, and the fourth section makes it obligatory on him to take sufficient security of the plaintiff, before he makes deliverance of any goods or chattels taken by virtue of a writ of replevin. The language of our statute is broader than that used in the English act, and its construction arising from its different parts, if it does not extend the action of replevin itself, must make the security or bond of the fourth section co-extensive with the action ; and require it to be given in all cases where the goods and chattels of any person, taken and wrongfully detained, are retaken by virtue of any writ of replevin, and delivered to the plaintiff; of course it cannot be confined to oases of mere distress. The statute of Westminster, 2 c. 2, in its language extends only to the deliverance of the distress and the return of the beasts, 6 Bacon, 57; 2 Inst, 338—9; and the 11 Geo. 2 c. 19, (6 Bacon, 60) uses the terms goods distrained, and the returning of the goods taken by distress for rent; and so the draftsman of our act has used some of the terms to be found in the old statute, and otherwise with some incongruity adhered to what would seem to be their requirement, yet it is manifest, that taking the whole act together, its only legitimate construction is that which we have given ; and the remedy given in the fourth section to the person who distrains, must be construed with the context to mean to him whose possession and right have been Affirmed 3 Zab. 737. Cited in Peacock v. Haney, 8 Vr. 181. — 422 — disturbed by the replevin. I feel the more constrained to adopt this construction from the fact, that the action of replevin, in the present commercial age, when personal property is constantly changing hands, is found to be a most valuable and important remedy for very many takings and unlawful detentions, of which the framers of the English acts could have had little or no conception ; and as a recent statute, Rev. Stat. 117, § 7 and 9, enables the actual possessor of the goods to retain them, by giving a bond with security for their forthcoming to answer the judgment in replevin, little difficulty can arise even if this action were extended. This Court has so far recognised the validity of a bond taken under the fourth section, as to determine that it is not, like one taken under the twelfth section, assignable, 1 Spencer, 81. And in New York and Massachusetts there are numerous cases where bonds have been taken in other cases, than in those arising from distress, 4 Wend. 616; 3 Do. 56; Gibbs v. Bull, 18 Jno. 435; 2 Mass. 518; 6 Do. 57; 8 Do. 147; 3 Do. 303. VI. By the sixth objection, it is insisted, that the damages should have been nominal and without interest, whereas the Judge charged that they should extend to the value of the property, with interest from the recovery in the original action. • The charge was right, the judgment below was merely retorno habendo, and the damages only nominal; 1 Spencer, 79; but from the time of the rendition thereof, the right of recovery was in the defendant, either against the Sheriff for taking insufficient security, or in the name of the Sheriff on the replevin bond, and the value of the goods at the time of the recovery together with interest thereon from that time, is the proper and reasonable measure of damages. Rowly v. Gibbs, 14 Jno. R. 385; Sedgewick on Damages, ch. 20, p. 522; 1 Taunt. 217. I think that the objections to the verdict are not well taken, and that the rule to show cause must be discharged with costs. The Chief Justice and Whitehead, J. concurred. Footnotes [(a)] In Haythorn v. Rushforth & al. 4 Harr. 160, it was held that replevin lies for an imlavjfal detention of goods, which was held to be a constructive taking.