Poor v. Darrah

10 Del. 394

• Court: Superior Court of Delaware
• Decided: July 5, 1877
• Status: Published

Opinion

The Court:

The action is by a purchaser to recover goods bought by him at a constable’s sale, and all these were but collateral matters which could not now be inquired into on the trial of it, for if such inquiries were allowable in such a case it would have the effect to prevent bidding at such sales. The objections were overruled.

Fulton, for plaintiff. Day, for defendant.

Day: In the former action of replevin, which was for a mule as well as the cow now in question in this action, the mule, but not the cow, was replevied and delivered to the plaintiff, who suffered a nonsuit in it for failing to file a declaration, on which the defendant took an assignment of the replevin bond and sued the plaintiff upon it, and recovered judgment against him; and after the judgment of non pros, had been entered against him in the first action, the plaintiff instituted this his second action of replevin against the defendant, not for the mule, but for the cow only, which he proved on the trial of this case had been wrongfully taken from his possession by the defendant after she had been delivered to him by the constable under his sale. The cow was replevied and delivered to him in the second action.

The Court ruled out the record of the former action of replevin and judgment of non pvos. in it against the plaintiff and also of the action on the replevin bond, as inadmissible and insufficient to prove a former recovery by the defendant of the property which was now the cause of action in this suit. The case afterward went to the jury and the plaintiff had a verdict.