Thomas T. M. Doogan vs. John S. Tyson, et al., 6 G. & J. 453

Stephen, J., delivered the opinion of the court. The questions which this case presents for adjudication are exclusively upon the pleadings, and are not free from difficulty. The object of the replevin bond is, no doubt, the indemnity of the defendant in the replevin suit; and all questions arising upon it should be determined by a due regard to that consideration. The plaintiff in replevin binds himself to prosecute his suit with effect, and in case the property is adjudged to be restored to the defendant, he is bound to do so, or his bond is forfeited.

In consequence of the property being restored to him by virtue of the writ of replevin, he assumes upon himself, by his bond, this legal responsibility. In 7 Taunt. 103, Gibbs, Ch. J., in defining the legal effect and operation of a replevin bond, says, — “ What is the cause of action? — The plaintiff distrains for rent on sheriff, who again takes the goods distrained out of the possession of the plaintiff, on entering into a bond in which two others join him; conditioned, if he shall appear and prosecute with effect: and if a return shall be adjudged, and he shall make return, then the bond shall be void.

It is too clear to argue. He is bound to do both, as well to prosecute with effect as to make return, if it shall be adjudged; and if he omits to do either, the bond is forfeited, and he is liable to the penalty.

The breach averred is, that sheriff did not make return, and inasmuch as it was necessary he should do both, the breach set out is good.” In 11 Serg. and Lowb. 236, Halroyd, J., speaking of the obligations imposed by a replevin bond, says, — “ The condition of the bond is broken, and the bond forfeited, as well by not prosecuting the suit with effect, as by a default of making a return of the distress, on such return being adjudged, each part of the condition being independent of the other, and the bond forfeited by a failure in either.

The failure of prosecuting the suit with success is, we think, a failure of prosecuting the same with effect.” The pleas to a replevin bond, according to British precedents, where the party relies upon performance of its condition, are generally, if not entirely and exclusively, special. That is, the defendant pleads, either that he has prosecuted his suit with effect, and that no return thereof was adjudged. Wills Rep. 56. 7 Wentworth, 7. 1 Bos. and Pul. 410, 411. 12 East. 585.

The practice, however, in this state, has been to put in the plea of general performance, as was done in this case; but whether objectionable or not, could only be taken advantage of on special demurrer; and we do not mean to say that it was improperly pleaded. This plea rendeied it necessary for the plaintiff to show his cause of action in his replication, and to state the breaches of the condition of the bond upon which he intended to rely. He replied, that the defendant had not made a return of the goods or chattels, or any of them, and that he did not prosecute his writ of replevin with effect.

To this replication, assigning a breach of both conditions of the bond, the defendant rejoined, that the goods and chattels mentioned in the replication were not replevied and delivered to him, under or by virtue of the writ of replevin in the replication mentioned, and that he did prosecute his suit of replevin with effect. To this rejoinder the plaintiff demurred specially, and assigned for causes of demurrer, duplicity, departure, and that the issue tendered by the plea of the non-delivery of the goods, under the writ of replevin, was an immaterial one.

We do not think that the rejoinder in this case was bad, or legally objectionable, on the ground of duplicity, even supposing that both the grounds of defence assumed by it were proper and legally efficient, because the double response in the defendant’s rejoinder was only an answer to the breaches assigned in the plaintiff’s replication. But we think that the defendant’s rejoinder is bad in that part of it where he alleges, that the goods and chattels mentioned in the replication were not replevied and delivered, under or by virtue of the writ of replevin.

Without deciding whether this averment contains matter which is a legal defence to the action or not, it is sufficient to say, that if it .is a legal defence, it is so pleaded as to present an immaterial issue for the decision of the jury, whose verdict, if found for the defendant, would not have been decisive of the right of action, as a part of the goods might have been replevied and delivered, although the whole were not; and if the plea contained matter which was not a defence to the action, it was bad upon the demurrer, and the plaintiff was entitled to judgment.

For these reasons we think the judgment of the court below ought to be reversed. JUDGMENT REVERSED, AND PROCEDENDO AWARDED.