McIlvaine's Adm'r. v. Holland Records

5 Del. 226

• Court: Supreme Court of Delaware
• Decided: June 5, 1849
• Status: Published

Opinion

By the Court:—

Harrington, Judge.

It is a judgment simply for costs. It is true, that in replevin, upon the defendant’s plea of property, both parties become, as it were, actors; and the defendant is entitled to a judgment, not’merely for costs, but pro retorno habendo on the plea of property, “ if it be found for him." (Clark vs. Adair, 3 Harr. Rep., 116.) It is the -verdict ascertaining the truth of his plea, that entitles Mm to this judgment; and so, if the goods be destroyed or sold, so that" he cannot have a return, the judgment is that he recover an equivalent in damages, if the plea of property be found for him. The judgment, therefore, for a return depends on a verdict, and the truth of the defendant’s plea is not admitted or ascertained by the plaintiff’s discontinuance of his action. The form of a judgment on a discontinuance is this: Whereupon, the said D., by his attorney aforesaid, offers himself ready for trial, at the suit of the aforesaid P., in the plea aforesaid; but the said P., although solemnly called comes not, but makes default, nor doth he further prosecute Ms writ aforesaid, against the aforesaid D., in the plea aforesaid; but voluntarily suffers his action to be discontinued; therefore, it is considered by the court here, that the said D. recover against the said P., the sum of $ , by the court here adjudged unto the said D., for his costs and charges by him about his defence in this behalf laid out and expended, and that he have thereof his execution, &e. (Harrison’s Entries, 109.)

It is true, that on an appeal from the judgment of a justice of the peace, and cross demand by the defendant, the court has held that the plaintiff cannot take a nonsuit; and there is a remark in the case assimulating this action to it; but the decision there is founded solely on the act of assembly, and it appears to us, on reflection, that there is a strong reason for it, which does not exist in the action of replevin. On appeal by a defendant, he becomes bound with surety to prosecute his suit with effect, and if the plaintiff should afterwards be permitted to discontinue or be nonsuited, it would be impossible for the defendant to prosecute his appeal; the judgment would be affirmed and might be executed, and the defendant thus deprived of Ms right of appeal. The necessary construction of that act, therefore, requires that the plaintiff in such a case should not be permitted to take a nonsuit.

But in the present case, the plaintiff in replevin has given bond to prosecute his action, and if he discontinues or is nonsuited, his bond is forfeited; and the defendant has full remedy by action thereon. There is no necessity in this, more than in other actions, to refuse to a plaintiff a right which generally belongs to him, of discontinuing his suit; upon which discontinuance the judgment is, under the act of assembly, for the defendant for costs, and nothing more.

Hence there being in fact no judgment for a return of the goods, or for an equivalent in damages on proof of their destruction, this court cannot award an inquisition or make any order in the nature of an inquisition, to ascertain the amount of damages. The defendant’s remedy is on the replevin bond.

Cullen, for plaintiff. Houston and Bayard, for defendant.

Rule discharged.