Clark v. Morss

Opinion, Mr. Justice McCollum: The appellants attack the original judgment in this case on two grounds. They contend, first, that the bond was invalid because it contained a warrant of attorney to confess judgment; and, second, that it was not forfeited at the time judgment was entered upon it. In support of their claim they refer to the record of the suit in which the bond was given, and to the eleventh section of the act of March 21, 1772, 1 Sm. L. 373. The record to which reference is made shows a verdict in favor of the defendants on the sixteenth of May, 1884, and a judgment on the verdict on the twenty-fourth of April, 1889. The judgment on the bond was entered on the fifteenth of March, 1887, by virtue of the warrant of attorney contained therein. The theory of the appellants is that any proceeding on the bond prior to final judgment in the action of replevin was premature; that the bond in replevin is prescribed by law; and that the [320] warrant of attorney to confess judgment was in excess of the statutory requirement, and rendered the whole instrument void. But it is clear that the act of 1772 is limited to a replevin of a distress for rent, and is not applicable to a case in which the title to the property replevied is the subject under investigation. It is now settled that the provisions of the act in relation to the assignment of the bond and the maintenance of an action thereon in the name of the avowant or person making conusance, affect only such bonds as are taken in replevin -of a distress for rent. In all other cases the suit on a replevin bond is properly brought in the name of the sheriff, obligee, to the use of the party beneficially interested: Morris on Replevin, 268, 269; Tibbal v. Cahoon, 10 W. 232; Balsley v. Hoffman, 13 Pa. 603. The bond in suit is not condemned by the act of 1772, and there is no decision of this court that the warrant to confess judgment invalidates it. Replevin bonds with like warrants are not uncommon in Pennsylvania. In the appendix to Morris on Replevin, the forms of bonds in use in Philadelphia in 1849 and in 1869 are given, and these contain a warrant to confess judgment. It is stated by the counsel for the appellees, in their paper-book, that in their district these bonds are in common use, and we learn' from reported decisions of the courts of Common Pleas that they are taken in other parts of the state: Dillon v. Wetzler, 10 L. Bar. 5 ; Shippley v. Evans, 3 Kulp 438. In Neville v. Williams, 7 W. 421, the plaintiff in a replevin confessed a judgment to the sheriff for his protection in executing the writ, and it was held that the sheriff was not restrained by any law from taking such security, and that process might be issued upon it for the use of the party beneficially interested. Morris, in his work already referred to, says: “ It seems that a warrant to confess judgment would be binding, though the sheriff might not be justified in insisting on such a provision.” In Shippley v. Evans, supra, J udge Elwell, in a well-considered and satisfactory opinion, sustained a judgment entered on a replevin bond bj virtue of the warrant of attorney contained in it. There is no statute or rule of public policy which prohibits a sheriff from accepting such a bond, if it is voluntarily tendered to him by the plaintiff in the replevin. The warrant to confess judgment affects [321] the remedy on the bond, but the liability of the obligors is measured by its lawful conditions. In the present case, the judgment entered on the replevin bond was opened to allow the appellants to take defence on the merits. The affidavit on which their motion to open the judgment was founded contained no suggestion that the bond was invalid, or that it was obtained from them by artifice or coercion, and there was no attempt on the trial to show that it was not their voluntary obligation. This bond was not taken under the statute to secure the return of a distress for rent, but in a case relating to property in chattels, and it depends on usage for its validity: Balsley v. Hoffman, supra. The question is, not whether the sheriff may lawfully exact such a bond, but whether it may, when voluntarily given, be enforced. No presumption of fraud or coercion arises from the presence of the warrant to confess judgment. It does not enlarge the obligation, but facilitates the enforcement of it. The real purpose of the bond is indemnity to the sheriff, and whatever form of security is intelligently and freely agreed upon by the parties is binding upon them. We hold, therefore, that the bond in this case and the judgment entered upon it were valid. The latter was not premature. It was authorized by the terms of the bond and warrant, and was cautionary only. But, aside from this, it was entered nearly three years after the verdict in the replevin suit, and the bond was forfeited by the failure of the principal obligor to prosecute his suit with effect: Gibbs v. Bartlett, 2 W. & S. 29; Pittsb. N. Bank v. Hall, 107 Pa. 583. The amendment to correct a clerical error in the entry of judgment on the verdict in the action of replevin was properly allowed. The question of the ownership of the property replevied was for the jury upon the evidence, and it was submitted with instructions which carefully guarded the rights of the appellants. Their claim respecting the title to this property has been denied by two juries, after full and fair hearings have been allowed them, and they have no just cause to complain of the action of the court. The specifications of error are dismissed, and The judgment is affirmed.