Hopewell v. Price , 2 H. & G. 275 ( 1828 )

Archer, J.

delivered the opinion of the court. The question presented for the consideration of the court in this case is, whether, upon a plea of property found for a defendant in replevin, he is entitled to an order in the nature of a writ of inquiry to assess the damages by him sustained in consequence of the loss of the possession by the execution of the writ of replevin?

The act of assembly of 1794, ch. 46, cited by the appellant, will be found to have no bearing favourable to the application. That statute was passed to remedy the inconveniencies existing in the execution of writs of inquiry before the sheriff, and was never intended, nor can it be construed, to give a right to have an inquiry of damages where none existed before.

The common law did not give damages in replevin to a defendant; but they were allowed to certain defendants in that action, by the statutes of 7 Hen. VIII, ch. 4, and 21 Hen. VIII, ch. 19. But these statutes only gave damages to avowants, or other persons making conusance, or justifying as bailiffs in replevin for rents or services, and they have not been extended to defendants claiming property. 2 Bac. Ab. tit. Costs, (F.) 53. Turner v Gallillee, Hard. 153.

In the cases falling within the statutes above referred to, the damages recovered, are such as are sustained before the institution of the suit. But to allow damages in this case, would be to give-them for the injury arising from the institution of the sub, and the detention of the property by the plaintiff from that time, which would be a novel proceeding, and justified by no analogy of law.

The remedy of the defendant will be found by a suit on the replevin bond executed by the plaintiff, the condition of which is sufficiently comprehensive to indemnify the defendant from any injury he may sustain b.y a nonsuit.

JUDGMENT AFFIRMED.