Sherman, J.
The first question submitted for the advice of this court, is, whether, upon the facts agreed and found in this case, the plaintiff is entitled to judgment.
By the common law of this state, there is no legal process by which a person whose property is taken from him can regain his possession. Replevin is given by statute. By an act passed in 1672, borrowed from the code of Massachusetts, a replevin is allowed “ for cattle or other goods and chattels impounded, distrained, attached, seized or extended.” But no person, other than the defendant in the suit, was within the provisions of this law, in regard to property attached. The first provision for a person not a party, whose property should be attached, was made in 1821, and is found in the 8th section of the statute, entitled “an act authorizing writs of replevin.” That section prescribes, that when any goods or chattels shall be attached, and any person other than the defendant shall claim to be the owner of them, he shall have power to replevy the same, on giving bond, conditioned “to prosecute his action of replevin to effect, and in case he fail to make his plea good, to return and redeliver the goods” &c. “to the officer attaching the same, so that they may be forthcoming to be taken by an execution” &c. “ and on failure [115]*115thereof, to pay the debt or damage that may be recovered in such suit.” It is insisted, by the plaintiff that this was a valid bond, when taken ; that it was given on the occasion, and in the form, prescribed by law ; that the joint ownership of the plaintiff, and every other fact, was well known to the obligors; that they cannot plead ignorance of the law applicable to these facts ; that the condition of the bond is broken, inasmuch as they have not prosecuted the action to effect, nor returned the property, or paid the damages and costs in the suit in which it was attached; and that the only rule of damages is the debt and costs for which judgment was recovered against Gallup, amounting to 1642 dollars, 23 cents.
It is now found, and admitted by the plaintiff, that the property attached was the property of Prentice and Roath, the plaintiffs in the action of replevin; that it was not liable to be attached as the property of Gallup ; and that if Prentice and Roath had never interfered, it could not have been applied to the payment of the execution. It was successfully contended, by the present plaintiff, when defendant in the action of replevin, that as he and the plaintiffs were joint owners, he had a perfect right, independently of his attachment, to take possession of this property, and consequently, could not be found guilty, on the general issue, in an action of replevin, in the form of an action of trespass. From these facts and this doctrine it would seem very clearly to follow, that a recovery by the plaintiff in this action would violate the principles of law and justice. The defendants, Prentice and Roath, have deprived him of no fund which he could appropriate to the payment of his claim on Gallup, nor, on his own principles, in any way invaded his rights, by taking possession of their common property, by force of legal process. If, under these circumstances, without having violated any right of the plaintiff, or done him any wrong, the defendants are liable to pay the sum for which he has recovered judgment against Gallup, there must have been some remarkable want of foresight in the authors of the statute. A little attention to its provisions, however, will vindicate them from any such imputation.
If the goods ought to be returned to the attaching officer, the court is to render judgment to that effect upon the facts found by the jury in the action of replevin. The defendant, after a trial in that suit, can never recover on the bond, unless [116]*116his right is then established. The statute provides, that “the ■ plaintiff in such replevin suit may cite the party who attached the goods and chattels ordered to be replevied, to appear before a proper court, to answer to a charge for unlawfully taking the same ; and if such plaintiff shall make out a title to such goods and chattels, he shall have judgment to retain the same, with his damages and costs ; but if he shall fail to make out a title, judgment shall be rendered against him to return such goods and chattels to the officer who attached the same ; and that, on failure thereof, he shall pay the value of such goods and chattels, or the debt or damages and costs recovered in the action on which they were attached,” &c.
Does the plaintiff, in the present case, shew any such judgment, or any verdict upon which a judgment “to return such goods and chattels” could have been legally rendered 1 If that court could not, on the issue taken and facts found, decree a return of the property, can this court doit? The statute is express, that in the action of replevin, if the plaintiff fails to make out a title, judgment shall be rendered against him to return such goods and chattels to the officer. If the defendant in replevin intends to avail himself of his attachment, he must put in a plea which will lay a foundation for a decision that the property shall be returned. But if his plea precludes the possibility of such a decision, he foregoes, forever, the opportunity of enforcing his attachment against the property, or making any claim upon the bond. If, for instance, he pleads non cepit, and it is found for him, he cannot have a return of the property ; for the verdict shews, that he never attached it. He may have judgment for his costs, but cannot recover them on the replevin bond,, as they are not secured by its conditions. If he succeeds in shewing that he never took the property by his attachment, and on that issue obtains a verdict and judgment in his favour, does not this constitute the pretended breach of the bond, which the defendant now avers, and on which alone he relies, namely, that the plaintiffs have not prosecuted their suit to effect ? But this, instead of giving him a right to call for a return of the property, ratifies his renunciation of it. It may hence be inferred, that the mere fact of a judgment against the plaintiff in replevin, does not, of course, constitute a breach of the conditions of his bond. The primary condition of the bond, [117]*117and which is the basis of all his liability, is, that “ in case he fail to make his plea good, he shall return and redeliver the-goods and chattels attached, to the officer.” Whatever absolves him from this liability, discharges him from every obligation arising from the bond. Such must be the effect of a judgment against him on the plea of non cepit. Instead of proving a breach of the bond, it would furnish an effectual defence against all claim which might afterwards be made upon it, by the defendant.
In this action of replevin, the defendant made no avowry. Had he tendered an issue, which would have enabled the jury to present, on their verdict, the facts which are now conceded, that the property attached did not belong to Gallup, but was the joint property of the plaintiffs and defendant in that suit, the principles adopted by the court, in their charge to the jury, would have barred any claim for the redelivery of the goods to the officer, and, consequently, for a breach of the bond. It was there adjudged, that a joint owner might retain the property, notwithstanding his having taken it by legal process. Such was the title of the present defendants.
But the defendant in the action of replevin pleaded, that he was not guilty.
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Sherman, J.
The first question submitted for the advice of this court, is, whether, upon the facts agreed and found in this case, the plaintiff is entitled to judgment.
By the common law of this state, there is no legal process by which a person whose property is taken from him can regain his possession. Replevin is given by statute. By an act passed in 1672, borrowed from the code of Massachusetts, a replevin is allowed “ for cattle or other goods and chattels impounded, distrained, attached, seized or extended.” But no person, other than the defendant in the suit, was within the provisions of this law, in regard to property attached. The first provision for a person not a party, whose property should be attached, was made in 1821, and is found in the 8th section of the statute, entitled “an act authorizing writs of replevin.” That section prescribes, that when any goods or chattels shall be attached, and any person other than the defendant shall claim to be the owner of them, he shall have power to replevy the same, on giving bond, conditioned “to prosecute his action of replevin to effect, and in case he fail to make his plea good, to return and redeliver the goods” &c. “to the officer attaching the same, so that they may be forthcoming to be taken by an execution” &c. “ and on failure [115]*115thereof, to pay the debt or damage that may be recovered in such suit.” It is insisted, by the plaintiff that this was a valid bond, when taken ; that it was given on the occasion, and in the form, prescribed by law ; that the joint ownership of the plaintiff, and every other fact, was well known to the obligors; that they cannot plead ignorance of the law applicable to these facts ; that the condition of the bond is broken, inasmuch as they have not prosecuted the action to effect, nor returned the property, or paid the damages and costs in the suit in which it was attached; and that the only rule of damages is the debt and costs for which judgment was recovered against Gallup, amounting to 1642 dollars, 23 cents.
It is now found, and admitted by the plaintiff, that the property attached was the property of Prentice and Roath, the plaintiffs in the action of replevin; that it was not liable to be attached as the property of Gallup ; and that if Prentice and Roath had never interfered, it could not have been applied to the payment of the execution. It was successfully contended, by the present plaintiff, when defendant in the action of replevin, that as he and the plaintiffs were joint owners, he had a perfect right, independently of his attachment, to take possession of this property, and consequently, could not be found guilty, on the general issue, in an action of replevin, in the form of an action of trespass. From these facts and this doctrine it would seem very clearly to follow, that a recovery by the plaintiff in this action would violate the principles of law and justice. The defendants, Prentice and Roath, have deprived him of no fund which he could appropriate to the payment of his claim on Gallup, nor, on his own principles, in any way invaded his rights, by taking possession of their common property, by force of legal process. If, under these circumstances, without having violated any right of the plaintiff, or done him any wrong, the defendants are liable to pay the sum for which he has recovered judgment against Gallup, there must have been some remarkable want of foresight in the authors of the statute. A little attention to its provisions, however, will vindicate them from any such imputation.
If the goods ought to be returned to the attaching officer, the court is to render judgment to that effect upon the facts found by the jury in the action of replevin. The defendant, after a trial in that suit, can never recover on the bond, unless [116]*116his right is then established. The statute provides, that “the ■ plaintiff in such replevin suit may cite the party who attached the goods and chattels ordered to be replevied, to appear before a proper court, to answer to a charge for unlawfully taking the same ; and if such plaintiff shall make out a title to such goods and chattels, he shall have judgment to retain the same, with his damages and costs ; but if he shall fail to make out a title, judgment shall be rendered against him to return such goods and chattels to the officer who attached the same ; and that, on failure thereof, he shall pay the value of such goods and chattels, or the debt or damages and costs recovered in the action on which they were attached,” &c.
Does the plaintiff, in the present case, shew any such judgment, or any verdict upon which a judgment “to return such goods and chattels” could have been legally rendered 1 If that court could not, on the issue taken and facts found, decree a return of the property, can this court doit? The statute is express, that in the action of replevin, if the plaintiff fails to make out a title, judgment shall be rendered against him to return such goods and chattels to the officer. If the defendant in replevin intends to avail himself of his attachment, he must put in a plea which will lay a foundation for a decision that the property shall be returned. But if his plea precludes the possibility of such a decision, he foregoes, forever, the opportunity of enforcing his attachment against the property, or making any claim upon the bond. If, for instance, he pleads non cepit, and it is found for him, he cannot have a return of the property ; for the verdict shews, that he never attached it. He may have judgment for his costs, but cannot recover them on the replevin bond,, as they are not secured by its conditions. If he succeeds in shewing that he never took the property by his attachment, and on that issue obtains a verdict and judgment in his favour, does not this constitute the pretended breach of the bond, which the defendant now avers, and on which alone he relies, namely, that the plaintiffs have not prosecuted their suit to effect ? But this, instead of giving him a right to call for a return of the property, ratifies his renunciation of it. It may hence be inferred, that the mere fact of a judgment against the plaintiff in replevin, does not, of course, constitute a breach of the conditions of his bond. The primary condition of the bond, [117]*117and which is the basis of all his liability, is, that “ in case he fail to make his plea good, he shall return and redeliver the-goods and chattels attached, to the officer.” Whatever absolves him from this liability, discharges him from every obligation arising from the bond. Such must be the effect of a judgment against him on the plea of non cepit. Instead of proving a breach of the bond, it would furnish an effectual defence against all claim which might afterwards be made upon it, by the defendant.
In this action of replevin, the defendant made no avowry. Had he tendered an issue, which would have enabled the jury to present, on their verdict, the facts which are now conceded, that the property attached did not belong to Gallup, but was the joint property of the plaintiffs and defendant in that suit, the principles adopted by the court, in their charge to the jury, would have barred any claim for the redelivery of the goods to the officer, and, consequently, for a breach of the bond. It was there adjudged, that a joint owner might retain the property, notwithstanding his having taken it by legal process. Such was the title of the present defendants.
But the defendant in the action of replevin pleaded, that he was not guilty. The jury found the issue in his favour. The court, on inspection of the record, perceives that this is the only fact found. It cannot be judicially known on what evidence it was found. Whether the verdict was so rendered because the property belonged to Gallup, or because it was owned by the plaintiffs and defendant jointly, or because the defendant never attached it at all, cannot be known to the court. How, then, on such a verdict, can the judge award a return of the property ? And how can this court, on the inspection of that issue, advise that the bond has been violated?
But it is contended, that the plaintiffs in replevin violated the conditions of their bond, because they did not “ prosecute their action of replevin to effect, and failed to make their plea good.” But what is meant, in a case like this, by prosecuting to effect, or making the plea good ? The grand object of the replevin, is, to restore the property to the plaintiff, and enable him to retain it. In the case in question, this end is accomplished. No judgment has been, or, as the record stands, could have been, rendered by the superior court, upon the verdict against the plaintiffs in the action of replevin, that they [118]*118should return the property. The condition of the bond expressly prescribes, that if the plaintiff fails to prosecute to effect and make his plea good, he is “ to return and redeliver the goods and chattels attached.” In all cases, then, where a final trial has been had, and no obligation to redeliver the goods is incurred, the plaintiff prosecutes to effect, and makes his plea good, within the intent of the statute, although the verdict and judgment are for the defendant. Such is obviously the law in the case supposed, of a verdict for the defendant on the plea of non cepit. Notwithstanding the verdict and judgment, the plaintiff is entitled to retain the goods. As to the great object, the retention of the property, he prosecutes to effect. Then the failure to obtain a verdict in this cause, on the issue of “ not guilty,” by the plaintiffs, is not a failure “to prosecute to effect” or “ make their plea good because no judgment for the return of the property was, or could be, rendered against them. Had such a judgment been rendered, it would have been forever conclusive. The writ de retorno hdbendo might have issued for the redelivery of the property to the attaching officer; and, if that were unsuccessful, and duly returned, remedy on the bond might be had, by a scire-facias on the same judgment. But unless such a judgment is rendered in the action of replevin, where a final trial is had, there can be no proceeding whatsoever, upon the bond, by any future action.
The plaintiff has moved in arrest of judgment, on the ground that a juror, returned and empannelled as a talisman, was not a freeholder. We are of opinion, that the act of 1837, dispenses with the freehold qualification of jurors in all cases where it was previously required. That of 1836 repeals the provision on this subject, in the 36th section of the “act for the regulation of civil actions,” and that of 1837 extends to every other.
For these reasons, we advise the superior court to overrule the motion in arrest, and render judgment for the defendants.
In this opinion the other Judges concurred, except Church, J., who was not present.
Motion in arrest overruled.
Judgment for defendants.