Ogle v. Smith , 7 Del. 174 ( 1859 )

DEBT on a replevin bond made and executed by Smith the defendant to Ogle when sheriff, upon a writ of replevin placed in his hands at the suit of Smith against J. E. Tyson, and on which the goods mentioned in the writ, were replevied and delivered to Smith by the sheriff. The breach assigned in the narr on the bond was that Smith the defendant in the present action, did not prosecute his said action of replevin against Tyson with effect, but therein made default, c. Pleas. Non est factum and performance. 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 case that the plaintiff in the action of replevin and the defendant in this suit, suffered a judgment of non pross. 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 estfactum 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.