
    THE FORT WAYNE ELECTRIC CORPORATION (FOR THE USE OF JOHN L. BURLEIGH), PLAINTIFF IN ERROR, v. THE SECURITY TRUST AND SAFE DEPOSIT COMPANY, DEFENDANT IN ERROR.
    Argued June 21, 1900
    Decided November 19, 1900.
    1. In an action of replevin oy the plaintiff in this case against F. C.,. the said F. C. gave bond as required by the ninth section of theReplevin act with the Security Trust and Safe Deposit Company as surety. The case proceeded to trial under the tenth section of' the Replevin act, and resulted in a verdict for plaintiff for the-value of the goods replevined. The goods were not returned or offered to be returned to the plaintiff. Held, that suit will lie-against the surety on the replevin bond.
    2. The suit is properly brought for the use of Burleigh. Harrison v.Maxwell, 15 Vroom 316, distinguished.
    On error to the Supreme Court. Tried at the September-Term, 1899, by the Camden Circuit, before Mr. Justice Gar-' rison (a jury being waived).
    Eor the plaintiff in error, David J. Pancoast.
    
    For the defendant in error, Robert E. McCarter and'. Samuel E. Grey, attorney-general.
   The opinion of the court was delivered by

Van Syokel, J.

An action of replevin was brought by' the Fort Wayne Company against the Franklin Electric-Light Company.

The sheriff of Cape May county, by virtue of the writ of' replevin, seized the goods in the possession of the defendant, whereupon the defendant gave the statutory bond required by the ninth section of the Replevin act, with the Security Trust and Safe Deposit Company as surety, and retained the goods-so seized.

The case proceeded to trial in accordance with the tenths ;seetion of the Replevin act, and resulted in a verdict for .'$12,518.16 (the value of the goods) for the plaintiff, upon which judgment was entered for the plaintiff in replevin. The goods replevined were not returned or offered to be returned to the plaintiff.

This suit is brought against the surety on the replevin ■bond. At the trial the court ruled that the plaintiff could not maintain its action against the suretjq because the recovery of the judgment for the value of the goods in the replevin ¡suit operated as a waiver and release of the plaintiff's right ■to proceed against the defendant as surety on the replevin •bond.

In speaking of the action of replevin at common law, Chief .Justice Ewing, in Bruen v. Ogden, 6 Halst, 370, 374, said: “The action of replevin at the outset restores the possession of the property, and in the conclusion affords a recompense in damages for the wrongful deprivation. While, on the .other hand, if he who has taken the goods claims property in them, they are not restored, nor the writ of replevin exe.cuted until this claim of property is first tried and determined.”

Chief Justice Green reiterates this statement of the law -in Frazier v. Fredericks, 4 Zab. 162, and says that the seventh and eighth sections of the Replevin act (Rev. Stat., p. 116) were passed to remove that difficulty by leaving the property in the hands of the defendant upon his giving bond for its •forthcoming, and directing the suit to proceed as if the claim ;Of property had not been made by the defendant.

He held that the provision of the eighth section “that the .suit shall be proceeded in and determined in the same manner in all respects as if the claim of property had not been made,” required the jury to include in the verdict the value of the property, as well as the damages for the detention, and that The bond for the return of the property was designed as a .security, and afforded a cumulative remedy.

The seventh section of the Replevin act, as contained in Rev. Stat., p. 116, is now the ninth section of our Replevin :act, and the eighth section is now the tenth se'etion, with the amendment that the jury shall find the value of the goods and chattels and the damages, and that the plaintiff shall have judgment therefor, in addition to his remedy on the replevin bond. This reference shows that expression was given in the statute to the construction which was given by •Chief Justice Green in Erazier v. Fredericks to the eighth section of the act as contained in the revised statutes.

This view of the law was adhered to in the recent opinion •of this court in Johnson v. Mason, 35 Vroom 258, where it is held that when a bond is given by a defendant in replevin under the ninth and tenth sections of the Replevin act, the only judgment that can be rendered on the trial is a judgment for the value of the goods and damages for their detention, and that thereafter the plaintiff might sue the surety •on the replevin bond, the remedy being cumulative.

The trial justice was therefore clearly in error in holding that the recovery of the judgment in replevin for the value • of the goods amounted to a waiver and release of the plaintiff’s right to proceed against the surety on the bond.

The recital in the judgment record that the plaintiff in replevin, on the trial of the replevin suit, announced openly in court its waiver of its right to a verdict awarding a return of the goods and chattels mentioned in the declaration, and its election to take a verdict for their value, cannot in anywise effect the suit against the surety on the replevin bond, because the law required a verdict to be rendered for the value of the goods, and the jury could not lawfully, by its verdict, award a return of the goods to the plaintiff, and there could not lawfully be a judgment in the trial court awarding a return •of said goods and chattels to the plaintiff in replevin.

The objection -that the suit on the bond is for the use of .John J. Burleigh, and must therefore be regarded as a suit strictly in his name, cannot prevail.

In Harrison v. Maxwell, 15 Vroom 316, the suit on the bond was under the seventh section of the Replevin act ■which authorizes the assignment of the bond to the defendant in replevin, and a suit by defendant thereon in his own •name. There was not an assignment to the defendant, and the suit was not in the name of the defendant, and consequently it was held that the action would not lie.

In this case the bond is assigned to the plaintiff in replevin,, and the suit is in the name of the plaintiff in replevin.

The fact that the plaintiff has given Burleigh the right to-appropriate to his own use such sum as shall be recovered in the suit against the surety cannot deprive the plaintiff of the right to recover, nor does it in anywise prejudice the surety. The court regards the person for whose use the suit is brought only so far as to protect him against any want of good faith on the part of his assignor, who is the real plaintiff.-

The judgment below should be reversed.

For affirmance—None.

For reversal—The Chancellor, Ci-iiee Justice, Van' Syckel, Dixon, Collins, Fort, Bogert, Hendrickson,. Vredenburgh, Voorhees. 10.  