(being either so assessed, or by the verdict in case of an issue) shall be levied on the person or goods of the defendant. So that, after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels), if the wrongdoer be very perverse, he can not be compelled to a restitution of the identical thing taken or detained; but he still has his election, to deliver the goods, or their value; an imperfection in the law, that results from the nature of personal property, which is easily concealed or conveyed out of the reach of justice, and not always amenable to the magis trate. (a) Personalty WAITE v. DOLBY SUPREME COURT OF TENNESSEE, 1847 8 Humph. (Tenn.) 406 Waite sued Dolby in the Circuit Court of Coffee County in detinue. Dolby pleaded non detinet, and a verdict and judgment were entered in the following language: "The jury sworn," etc., "do say that the defendant doth detain the mare Rollo, described in the declaration in manner and form as the plaintiff hath complained, and they do assess the plaintiff's damage, by reason of the detention thereof to ten dollars, and the jurors aforesaid upon their oaths aforesaid do further say, that the mare Rollo was of the value of one hundred and thirty-five dollars. It is therefore considered by the court that the plaintiff recover of the said defendant, the mare Rollo, if she can be had; and the damages aforesaid assessed for her detention, and also his costs about his suit in this behalf expended; and it is further considered by the court, that in case said mare can not be had, that the plaintiff recover of the defendant the sum of one hundred and thirty-five dollars, the value of the mare, as ascertained by the jury, together with the damages as aforesaid assessed, and his costs," etc. On this judgment the clerk issued a fieri facias, in the usual form, for the value of the mare, to wit, one hundred and thirty-five dollars and ten dollars damages and costs. The fieri facias was levied on the land of Dolby, lying in the county of Coffee. It was sold, and the plaintiff, Waite, became the purchaser, and instituted his action of ejectment against Dolby, and at the February term, 1847, of the Circuit Court of Coffee County, the case was tried by Judge Marchbanks, and a jury, and a verdict and judgment were entered for the plaintiff. The defendant appealed.91 GREEN, J.: The action of detinue is for the thing detained, and damages for detention; the value of the property is ascertained by "The argument of counsel, and part of the opinion is omitted. the jury, and the judgment is in the alternative, for the sum so found as the value, in case the thing recovered can not be had. In fixing this value, the practice is to render a verdict for the highest price, in order to enforce the delivery of the thing. It is manifest from the form of the judgment, and the object in fixing the value, that a distringas for the thing recovered must be issued in the first instance. How can it be ascertained that the thing can not be had, unless by the return of process, which had issued to obtain it? And the judgment for the money is conditional; if the thing can not be had; therefore, if execution for the money issue, before it is ascertained by the return of a distringas, that the thing can not be had, it is certainly erroneous, if not irregular, and void. It is often difficult to determine whether process be irregular, or erroneous only; but we are inclined to regard the execution in this case as irregular and void. It is not like the case of the issuance of a fieri facias after a year and a day without a scire facias. In such case there is a regular judgment which authorizes the fieri facias; but by reason of the lapse of time, it is erroneous to take it out, until a scire facias has been issued to revive the judgment. But here, the judgment for the value of the mare, was, on condition the mare could not be had; until it was ascertained the mare could not be had, there was nothing in this judgment for the execution to rest upon. But be this as it may, there can be no doubt but that the distringas should first issue-until which, the issuance of the fieri facias was unlawful. This being the case, the defendant in error acquired no title by his purchase of the land, though the sale might have been valid had a stranger purchased; I Tenn. 222. Judgment reversed.92 "At common law upon judgment in detinue a distringas issued to compel the delivery of the goods and if the goods were not recovered execution issued against the person or property of the defendant. 3 Blackst. Comm. 413; 8 Viner's Abr. 40, pl. 15; Keilwey 64 b (1504); Peters v. Heyward, Cro. Jac. 682 (1623); Molloy v. M'Daniel, 1 Overt (Tenn.) 222 (1805); Garland v. Bugg, 5 Munf. (Va.) 166 (1816); Jordan v. Williams, 3 Rand. (Va.) 501 (1825); Boyd v. Williams, 5 J. J. Marsh. (Ky.) 56 (1830); Vines v. Brownrigg, 18 N. Car. 239 (1835); Jordan v. Thomas, 34 Miss. 72, 69 Am. Dec. 387 (1857); Keith v. Johnson, 1 Dana (Ky.) 604 (1833); Robinson v. Richards, 45 Ala. 354 (1871); Ex parte Vaughan, 168 Ala. 187, 53 So. 270 (1910). Under the modern English practice a judgment for the recovery of any property other than land or money may be enforced by writ for the delivery of the property, Order XLII, rule 6; Ann. Pr. Appendix H, 10. And ordinarily the sheriff either causes the property to be returned or levies the value assessed in the judgment. But the court may, under Order XLVIII, rule 1, upon the plaintiff's application, order the execution to issue for the delivery of the chattel, without giving the defendant the option of returning the property on paying the value assessed. Upon this order, the writ directs that if the property can not be found, the sheriff shall distrain the defendant by all his lands and chattels till the defendant deliver the property. Where the order to return the chattels is personal, disobedience of the defendant may be punished as contempt. Hymas v. Ogden, L. R. (1905) 1 K. B. 246. So also, where the writ of delivery would be futile, as where the defendant is out of the jurisdiction, a writ of assistance may issue. Wyman v. Knight, L. R. 39 Ch. Div. 165 (1888); Borde v. Othon, 23 W. R. 110 (1874). REBER V. SCIIROEDER 805 REBER v. SCHROEDER SUPREME COURT OF PENNSYLVANIA, 1908 221 Pa. 152 Appeal by defendant from judgment of Common Pleas of Berks County on verdict for plaintiff in the case of Sarah Reber v. Daniel E. Schroeder, executor of George F. Hagenman.93 FELL, J.: This was an action of replevin for certificates of stock of a national bank, which were in the name and possession of George F. Hagenman at the time of his death, and were found in his safe by his executor, enclosed in a sealed envelope, with a power of attorney transferring them to the plaintiff. The thirteenth and fourteenth assignments relate to the verdict and the judgment entered thereon, and give rise to questions under the Act of April 19, 1901, P. L. 88, regulating the practice in replevin. The defendant had entered a claim property bond and retained possession of the stock certificate. The verdict rendered was for the plaintiff without a finding of the value of the shares and damages for their detention, and the judgment entered was a general one in favor of the plaintiff. At common law and before the Act of 1901, where the defendant retained possession of the property, the action proceeded for damages only. The property could not be recovered from him, nor could he tender it in satisfaction of the verdict. The giving of the claim property bond put an end to the plaintiff's title, which was thereupon turned into a chose in action to be compensated for in damages. The defendant was the only party who could have a judgment de retorno habendo; Fisher v. Whoollery, 25 Pa. 197; Schofield v. Ferrers, 46 Pa. 438; Rockey v. Burkhalter, 68 Pa. 221; Morris on Replevin, 210.94 The Act of 1901 has changed the practice in this respect, and a plaintiff who has not been given possession of the property is entitled to a writ of retorno habendo, as well as to a writ of fieri facias, to recover the value of the property and damages awarded, and costs. It is provided by section 5, that where judgment has been entered for the plaintiff for the want of a sufficient affidavit of defense, for a portion of the goods and chattels replevied, he may proceed to recover such goods and chattels by a writ of retorno habendo, or the value thereof, after assessment of damages on a writ of inquiry.95 Section 7 pro "The arguments of counsel and part of the opinion are omitted. "In Powell v. Hinsdale, 5 Mass. 343 (1809), it is said, per Parsons, C. J.: "In replevin each party may be an actor. If the plaintiff prevails, he shall have damages for the unlawful caption and detention by the defendant and also his costs. But if the defendant prevails, he shall have a return of the goods, and damages for the taking of them on the writ and also his costs." Easton v. Worthington, Serg. & R. (Pa.) 130 (1819); Parker v. Simonds, 49 Mass. (8 Metc.) 205 (1844); Frazier v. Fredericks, 24 N. J. L. 162 (1853); State v. Carrick, 70 Md. 586, 17 Atl. 559, 14 Am. St. 387 (1889). In Painter v. Snyder, 22 Pa. Super. Ct. 603 (1903), the mere entry of judgment was held not error. But in Wilburn v. Cologers, 97 Miss. 511, 52 So. 794 (1910), judgment by default without writ of inquiry was held errone ous. vides that "if the title to said goods and chattels be found finally to be in a party who has not been given possession of the same, in said proceeding, the jury shall determine the value thereof to the successful party, and he may, at his option, issue a writ in the nature of a writ of retorno habendo, requiring the delivery thereof to him, with an added clause of fieri facias as to damages awarded and costs; and upon failure so to recover them, or in the first instance, he may issue execution for the value thereof, and the damages awarded and costs; or he may sue, in the first instance, upon the bond given, and recover thereon the value of the goods and chattels, damages and costs, in the same manner that recovery is had upon other official bonds." Before the Act of 1901, the verdict rendered in this case would have been of no avail to the plaintiff, because a judgment retorno habendo could not have been entered upon it; Moore v. Shenk, 3 Pa. 13; and there was no award of damages for which a writ of execution could issue. But by virtue of the act, the plaintiff is entitled to a return of the property, and she may have a writ to enforce the right. A judgment on the verdict is sufficient to sustain such a writ. She has not obtained all that she was entitled to by the trial, because of the failure of the jury to find the value of the property and damages for its detention, but the judgment on the verdict is not invalid. The judgment is affirmed.96 "Accord: Duroth Mfg. Co. v. Cauffiel, 243 Pa. 24, 89 Atl. 798 (1914). In replevin and the corresponding code remedy "claim and delivery" the procedure is now largely statutory and varies greatly. As in the principal case, the statutes in some jurisdictions permit the successful party to elect whether he will take a return of the property or payment of its value. White v. Graves, 68 Mo. 218 (1878); Koelling v. August Gast Co., 103 Mo. App. 98, 77 S. W. 474 (1903); Oskaloosa Steam Engine Works v. Nelson, 54 Iowa 519, 6 N. W. 718 (1880); Martin v. Ferguson (Ky.), III S. W. 281 (1911). Under codes which allow an execution for the return of the specific property and, if the property can not be had, satisfaction by levy, it is generally held that a return of the property and payment of damages by the unsuccessful party discharges his liability. Dwight v. Enos, 9 N. Y. 470, Seld. Notes 226 (1854); N. Y. Code Civ. Pro., § 1731; Cal. Code Civ. Pro. § 667; Bales v. Scott, 26 Ind. 202 (1866); Marks v. Willis, 36 Ore. 1, 58 Pac. 526, 78 Am. St. 752 (1899); Carson v. Applegarth, 6 Nev. 187 (1870); Johnson v. Gallegos, 10 N. Mex. I, 60 Pac. 71 (1900); Pabst Brewing Co. v. Rapid Safety Filter Co., 56 Misc. 445, 107 N. Y. S. 163 (1907); Leve v. Frazier, 42 Ore. 141, 70 Pac. 376 (1902); N. Y. & Brooklyn Brewing Co. v. Angels, 144 App. Div. 655, 129 N. Y. S. 713 (1911); Chestnut v. Sales, 44 Mont. 534, 121 Pac. 481 (1912). Compare Swantz v. Pillow, 50 Ark. 300, 70 S. W. 167, 7 Am. St. 98 (1887). In New Jersey a defendant who has given bond and retained possession, if unsuc cessful, can not tender the goods to plaintiff in lieu of damages. Leinbeck & Betz Brewing Co. v. Tarrant, 79 N. J. L. 372, 75 Atl. 474 (1910). In Wyoming an unsuccessful plaintiff can not satisfy a judgment by a return of the property. Montana & W. Oil Co. v. Gibson, 113 Pac. 784 (1911). LEEPER, GRAVES & CO. V. FIRST NAT. BANK 807 LEEPER, GRAVES & CO. v. FIRST NAT. BANK SUPREME COURT OF OKLAHOMA, 1910 26 Okla. 707 Error from the District Court of Kiowa County. The First National Bank of Hobart was pledgee in possession of eight steel bridges, valued at $4,855, held as security for an indebtedness of $6,000. On April 18, 1904, Leeper, Graves & Co., a corporation, having given bond signed by itself and D. S. Dill, J. G. Leeper and John W. Graves, brought replevin and the property was taken from the possession of the bank and delivered to it. On the trial of this action of replevin judgment was rendered in favor of the bank for the return of the property if it could be had, and if the same could not be returned, then for $4,855 with costs. Afterwards an agent of Leeper, Graves & Co. went to Hobart and tendered a return of the bridges, which was rejected by the bank, after checking over the bridges and ascertaining that certain parts were missing, and an action was begun by the bank within a few days on the replevin bond. On the trial the court found, as a conclusion of law, that to escape liability on the bond it was necessary for the company to tender a return of the complete structures or to have obligated itself to make them complete by supplying any necessary parts found to be missing. Judgment was entered for the bank for $4,855, with interest. The defendants bring error.97 DUNN, C. J.: No contention is made that the company did not receive these missing articles in the replevin action, nor was there any evidence offered to show that they were withheld in bad faith, nor were not such that either of the parties could go into the open market and readily purchase and replace, as they would any other item of personal property. And, if the rule obtains that a plaintiff who in an action of replevin under a judgment requiring him to return the property taken may return less than the whole when part is lost, then to our minds the bond which is given in such a case would be responsive to the requirements suggested by the court in its second conclusion, wherein it is held that the company should have obligated itself to have made the structures complete by supplying any necessary part found to be missing. On the question as to whether a plaintiff against whom a judgment has been rendered in replevin may return a portion of the property, and receive credit therefor, being liable for the unreturned portion on his bond, or whether he must tender all or none, the authorities are not entirely harmonious. The following cases hold that a partial return. with a monetary liability for the unreturned portion is not permissible, and that a plaintiff under such a state of facts must return. all or pay the judgment for the entire amount of the property "The statement of facts is abridged from the opinion of the court, part of which is omitted. |