Ogle v. Smith

7 Del. 174

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

By the Court:

We cannot entertain the motion in this case for a nonsuit: for although it is unusual, and perhaps, unprecedented for sheriffs themselves to sue on replevin bonds, we see nothing in the reason of the thing, or in the legal principles or considerations which justly apply to and govern the matter, which would forbid it. Besides, cases might well arise, when it would be highly important for his own security, that he, as well as others, should possess the power of suing in his own name on such an instrument given to himself. He may sue on a bail bond given to himself, and in any Court it is said in the books, although assignees in general of such bonds, it is also said, can only sue in the Court in which the action was commenced in which the bail was taken. But it seems in this ease that the plaintiff in the action of replevin and the defendant in this suit,suffered a judgment of nonpross. to be entered against him in that action, by which the replevin bond became forfeited. The plaintiff, however, has rested his case on proof of the execution of the bond simply, whilst the defendant has pleaded non est factum and performance merely, without offering any evidence whatever in support of either issue joined upon the record. What the property was, or what was its value, or for what the action of the replevin was brought, we are not informed by any evidence on either side ; but as the verdict of the jury must be for the plaintiff" on the issue of non est factum, it can only be for six cents, or nominal damages.