[Philadelphia,
January, 9, 1826.)
PEARCE against HUMPHREYS.
IN ERROR.
The sheriff is answerable for the sufficiency of sureties in a replevin bond, at the termination of the suit. ' It is not enough that they were sufficient when they were taken.
Benjamin Humphreys, the plaintiff below and defendant in error,
brought this action of trespass on the case against Cromwell Pearce, the defendant below and plaintiff in error. The declaration charged, that the said Benjamin, on the 1st day of February, 1817, was possessed of one wagon, &c. of the value of. &c. of his own proper goods and chattels, and that the said Cromwell, on the day and year aforesaid, was high sheriff, &c. and the said Benjamin so of the goods and chattels possessed, and he the said Cromwell so as aforesaid being high sheriff, &c. the duty of his said office not considering, but contriving, and fraudulently intending the said Benjamin of his goods and chattels aforesaid to deprive and defraud, on the day and year aforesaid, at, &c. by colour of his office aforesaid, and under the pretence of a writ of replevin to him directed and delivered, the goods and chattels aforesaid, at, &c. being found, at the plaint of one. Jacob Boot, pretending the same goods and chattels were the proper goods and chattels of the said Jacob, and to the said Jacob of right to belong, and that the said Benjamin had taken the goods and chattels aforesaid, and the same unjustly detained, against sureties and pledges, the goods and chattels aforesaid to be replevied from the possession of the said Benjamin, to be delivered to the said Jacob did cause and procure, without sufficient surety and pledges, or any sufficient surety, had or taken to prosecute the said suit and plaint of him the said Jacob, against the said Benjamin, for the caption and unjust detention of the goods and chattels aforesaid, and to make a return of the said goods and chattels to the said Benjamin, if a return should be adjudged to the said Benjamin, as by the law and custom of the commbnwealth of Pennsylvania, and the duty of his office, and the tenor of the writ aforesaid, he ought to have done. And whereas afterwards, to wit, on the same day and year aforesaid, at, &c. he the said Benjamin was summoned into the Court of Common Pleas of the said county, to appear on the first *24
Monday of February, then next following, to answer the said Jacob of a plea, why he took the goods and chattels aforesaid, and thereupon it was in such manner proceeded, that by the said court it was considered, that the said Benjamin should have a re* turn of the goods and chattels aforesaid, to be delivered to him ir-replevisable for ever, which said judgment remains, and is in full force and vigour, not reversed or annulled; and the said Benjamin in fact saith, that the goods and chattels aforesaid, to the aforesaid Jacob, by reason of the replevin aforesaid, so as aforesaid delivered, to places obscure and unknown were eloigned, whereby they cannot be returned or delivered to the said Benjamin, and the said Benjamin the goods and chattels aforesaid, by the occasion aforesaid, hath wholly lost, and is without remedy, to the damage of the said Benjamin, &c. Plea, not guilty.
On the trial the defendant contended, that in the performance of his duty as sheriff, he executed the replevin as he was commanded; that he did take security, believed to be at that time sufficient, in the reasonable estimation of every one; that this was all that was required of him; and that, therefore, he was not answerable for their proving insolvent at the termination of the replevin suit, nor guilty of any neglect of duty.
The court charged the jury, that the law of Pennsylvania is as laid down by the late Judge Siiippen, in the case of Oxley v. Cowperthwaite, 1 Dali. 349, that the sheriff is responsible for the sufficiency of the sureties, at the termination of the replevin suit. When the defendant shall have established his right, the sureties are to prove sufficient, that is, to be found sufficient when their responsibility is required; not merely that they appeared sufficient at the time they were taken, though they soon became insufficient, but the sheriff must take care to have sureties who are sufficient to answer the defendant’s purpose, viz. to return the property which he shall have shown to have been taken wrongfully from him.
The court was requested.by the defendant’s counsel to charge the jury,
1. That, if the jury believe the defendant, as sheriff of Chester county, used every necessary and proper precaution in taking good and sufficient sureties in the replevin bond, in the suit of Root against Humphreys, and if the jury also believe, that at the time the sureties were so taken they were good and sufficient, they ought to find for the defendant.
2. That, under the declaration in this suit, the plaintiff ought not to recover, if the jury are satisfied, that at the time the reple-vin bond was executed and signed, in the said suit of Root against Humphreys, the sureties in the said bond were good and sufficient.
3. The plaintiff cannot recovér against the defendant, on account of the sureties being insufficient, at the time of the trial of the said *25suit of Root against Humphreys, without having in the declaration declared that the sureties were so insufficient at that time.i’
Answer, 1. and 2. We cannot charge'the jury as requested. The sheriff does not use every necessary and proper precaution, unless he takes surety, which shall prove sufficient, .at the end of the re-plevin suit, and he is liable, if they prove insufficient, whether they were apparently so'or not, at the time of executing the bond.
3. If the sureties prove insufficient .at the termination of the re-plevin suit, the plaintiff may well recover on this declaration, which is for taking the chattels, without having sufficient sureties and pledges. The sureties must be able to answer the purposes for which they were.intended, or they are not sufficient.
Edwards, for the plaintiff in error.
Tilghman, contra, was not heard by the court.
The opinion of the court was delivered by
Duncan, J.
The late Chief Justice Shxppen, has been properly styled the father of the law of replevin in this state. While President of the Court of Common Pleas, he established certain principles, in conducting the action, and on the responsibility of a sheriff who executes them, thirty-seven years ago, which have prevailed ever since. Indeed, it became necessary, from the structure of our courts of justice, to adopt other rules for the government of this action, than obtained in England. In Weaver v. Lawrence, decided in 1788, 1 Dall. 156, he clearly shdws, that there can exist no replevin in Pennsylvania, either under the statute of Marlbridge, or at the common law. The writ and the action rest on the provisions of the act of 1705, 1 Smith, 44. And again, in Hocker v. Stricker, 1 Dall. 225, it was held, that before goods be remanded, the sheriff ought to allow the defendant in re-plevin a reasonable time to find security. On a claim of property, this practice supplies the writ de proprietate probanda, which does not lie here. Our replevin differs from the writ'and action of replevin in England in another important respect: — here it lies where a man claims goods in the possession of another; there it is said only to lie in cases of distress, or where there has been a taking of goods out of the possession of him who sues it forth. In Oxley v. Cowperthwaite, 1 Dall. 349, the principle now controverted by the plaintiff in error, was decided, that the sufficiency of the sureties, at the termination of the action, was the criterion. The mind of that just judge was impressed with the hardship of the rule, and that in this instance the policy of the law bore hard on the officer: yet that would not justify the court in departing from the established principle, that the sheriff takes the pledge in his own name and at his own peril and risk. This certainly was taken to be the law of England, when Oxley's case was determined, Gilb. Rep. 76. 16 Vin. 399, pl. 4. Stat. 12 G. 2. Rowan v. Patterson, 2 Inst. 339. Until a late period in England, the allegation *26in the declaration was general, that the sheriff did replevy and deliver the goods to the plaintiff, without taking sufficient sureties, not alleging that they were insufficient at the time they were taken. Lill. 37. Browne, 25, 26. But the latter precedents state, that at the time of their becoming pledges, they were insufficient and totally irresponsible. In New York the courts adhere to the ancient law, that the sheriff may be sued without any previous proceedings against the pledges, as the security is taken by the sheriff for his own indemnity, in his own name and at his own peril. Gibbs v. Bull, 18 Johns. 438. If I were to be guided by my own sense of justice, without regard to authority, I must own that it would seem to me, that commutative justice would require a different criterion; for as the sheriff would be liable to an action of trespass for removing the goods and delivering them to the plaintiff, when the defendant offers sufficient pledges on the claim of property, and could not justify under the replevin; and that, as the criterion there would be the sufficiency at the time, so it ought to be where he delivers up the goods to the plaintiff in replevin. Their apparent responsibility at the time when he accepted them, would have been the justest rule at first. The sheriff does all he can to make diligent inquiry: he ought not to be bound to know what nobody else knows; and if the rest of the world would trust the security, it appears but reasonable that it should be a sufficient justification to the sheriff, if he consider him as a responsible person; for .the presumption is; that the sheriff would be liable if he took, as security, a man who apparently had the strongest foundation, whose circumstances were not suspected by any one, yet if it turned out differently in a lapse of years, before the cause was tried, that he should fail; is throwing an unusual burden on the sheriff. But with all this impression of the hardship, the court thirty-eight years ago adhered to the ancient law, which no supposed hardship would justify a departure from. The decision of Oxley v. Cowperthwaite, has ever since been received as the law of the land. The court there said, it was for the legislature to make some provision for an inquiry into the sufficiency of the bail at an earlier stage of the cause. The legislature has not thought proper to change the law: sheriffs have accepted their office with the knowledge of this onerous duty; it would be a bold assumption of power in this court now to relieve them from it upon any speculative opinions of their own. However hard it may be in this particular instance, the court cannot unbind those whom the law has bound. The security is to the sheriff at his own peril, in his own name, and for his own indemnity: he may take the security as it pleases him, (Gilb. Rep. 79,) for .he continues responsible to the value of the goods. The judgment is therefore to be affirmed.
Judgment affirmed.