Belt ex rel. Boswell v. Worthington , 3 G. & J. 247 ( 1831 )

Archer, J.,

delivered the opinion of the court.

The judgment by default in the replevin bond against the defendant, only admits, that he did not prosecute his writ of replevin with effect; and it is incumbent on the plaintiff in the action, to show the damage which he has sustained by the failure to prosecute. For this purpose, he has offered in evidence, the proceedings in replevin, in which the bond was taken, by which it appears that the replevin was executed, and the goods delivered to the defendants, and that instead of prosecuting the writ with effect, the suit was, by their order, stricken off. Upon the execution of the writ of inquiry, the plaintiffs sought to recover the value of the goods, which, from the proceedings, appear to have been delivered to the defendants, and not returned; and in mitigation of the damages, the defendants offered evidence to show title in them, to the goods, at the time of the replevin' sued out. Its admissibility has been questioned, which forms the subject for our consideration. If the judgment of non-suit, which followed, or ought to have followed, the order to strike off the suit in replevin, had been conclusive of the rights of the parties to the property in controversy, the evidence would have been clearly inadmissible. But we apprehend, that no right has been settled between the parties to the suit, which should induce the rejection of the evidence. The right to have the return of the goods, is the only consequence of the judgment. The title to the goods is in no manner settled by it, and the defendant could not, therefore, be estopped by the proceedings, from an effort to mitigate the damages, by setting up a title to the goods. The object of the law in prescribing that a replevin bond shall be entered into by a plaintiff, before he should have the benefit of the writ, was only to give indemnity to the defendant. If, in truth, he had no right to the property, at the time of the institution of the suit, the rejection of the evidence, by putting it in his power, to recover the value of the goods, would enable him to overreach a just measure of indemnity, and inflict upon the plaintiff a penalty which the law never contemplated. No argument can be deduced against the admissibility of this evidence, from the principles applicable to recoveries on appeal bonds, taken from actions on money contracts, where the judgments, by default, are as conclusive as upon verdicts; because, in the proceedings in the replevin suit, which gave rise to this replevin bond, nothing has been done which is at all conclusive upon the parties, with regard to title; and the action of replevin, being an action sui generis, the recovery on the replevin bond, ought to be moulded in such a manner as will best subserve the principles of justice. Whether such evidence would have been admissible, had the pleadings in the action of replevin assumed other forms, it is not proper now to determine. We may be permitted, however, to say, that the question must always be regulated by a reference to the rights decided in the action, and the nature and character of the bond.

JUDGMENT AFFIRMED.