
    WOODWARD VS. GAREY.
    A Sheriff may be called to supplement his return toa writ of replevin ; but is then liable to be cross-examined like any other witness.
    The record of a replevin suit may be given in evidence by a party in order to show title in himself, even though a writ of error is pending.
    Error to Common Pleas of Sullivan County. No. 286 January Term, 1885.
    This was an action of trespass brought by W. C. Garey vs. N. K Woodward. It appeared that in February and March, 1883, O. A. Seeley delivered at Dushore Switch and other places in Dushore certain lumber which he had sold to N. K. Woodward. A part of these shipments were stored at “Hadley Avenue.” On the 2d of May, W. C. Garey issued a writ of replevin against Seeley, commanding the Sheriff to replevy “sixty thousand feet of hemlock lumber at Dushore Switch, of the value of $420;” to which return was made: “Replevied as within commanded, and summoned the defendant May 3d, 1883, and property replevied delivered to plaintiff.” In June, 1883, Woodward removed the lumber, which was lying at Iladley avenue, and Garey brought this action of trespass against him to recover its value. The replevin- suit -was tried in December, 1883, on a plea of property in Woodward and others, and resulted in a verdict for Garey, upon which judgment was entered March 31st, 1884. To this a writ of error was taken, and, while it was pending, (sincé reported 109 Pa. 301) the action of trespass was tried.
    The plaintiff claimed that his title to the lumber was established by the verdict and judgment in the replevin suit; but, as the writ and return did not show that the property at Hadley Avenue was involved in that suit, he called the Sheriff, and proved by Mm that it was a part of that which he replevied. The defendant objected to the record because it was between other parties, and because a writ of error was pending ; and to the parol evidence because the return. showed for itself what was done under the writ. The evidence being admitted, the defendant excepted. He attempted to cross-examine the Sheriff as to the amount of lumber replevied, and the exact place where it was situated, which was excluded as irrelevant and an exception sealed.
    The defendant offered 'to show that a writ of error to the judgment in the replevin suit was pending, wherefore it could not be said that anything was yet determined thereby ; but the Court refused, to admit it. Testimony was also excluded tending to show that the Sheriff' had said to other persons that the lumber at Hadley Avenue was not included in the replevin.
    The verdict was for the plaintiff, for $97.55.
    “Woodward then took a writ of error. ' The first and second assignments of error were to the admission of the record of the replevin suit and the parol testimony of the Sheriff; the third to the refusal to permit the cross-examination; the fourth to the rejection of the writ of error ; and the sixth, eighth and ninth to the exclusion of the proposed contradiction of the Sheriff.
    
      
      Messrs. R. J. Thompson and Evans & Maynard, Esqs., for plaintiff in error,
    cited Ewing vs. Thompson, 7 Wright 376, 377 and 378 as to the effect of the writ of error in the replevin suit.
    
      Messrs. Dunham and Ingham, Esqs., contra.
    
   The Supreme Court reversed the judgment of the Common Pleas on April 20, 1885, in the following opinion, per:

Sterrett, J.

It was incumbent on plaintiff below to prove that the lumber, which is the subject of this action of trespass, belonged to himself. Eor that purpose he gave in evidence the record of an action of replevin, brought by him in 1883 against O. A. Seeley tor sixty thousand feet of hemlock lumber. This record evidence was supplemented by oral testimony of the Sheriff who executed the writ, tending to prove that the lumber now in controversy was part of the larger lot replevied by him in that case! The admission of this evidence, both record and oral, is assigned for error. We are satisfied, however, that it was neither incompetent nor irrelevant, and hence the first and second assignments are not sustained. The issue in the action of replevin, involving, as it appears to have done, the title of plaintiff below to the lumber replevied, as against both the defendant therein and the defendant in this suit, was determined in his favor ; but, inasmuch as it did not appear by the record that the lumber now in controversy was embraced in the action of replevin, it was necessary for him to prove the fact aliunde ; and for that purpose the Sheriff was called, not to contradict or correct any error in his return, but to identify the lumber as part of the larger lot replevied and delivered to plaintiff in the writ,-as set forth in his return indorsed therein. The command of the writ was to replevy sixty thousand feet of hemlock lumber at Dushore’s Switch, etc.', and the Sheriff’s return thereto was, “Replevied as within commanded * * * * and property replevied delivered to plaintiff.” It was undoubtedly competent for the plaintiff to identify the property thus replevied, and prove, if he could by the Sheriff or any other competent witness, that the lumber now in controversy was part thereof; but it is equally clear that the witness called by him was subject to cross-examination, in like manner as any other witness, for the purpose of testing his recollection and the accuracy of his statements. The fact that he was the Sheriff, by whom the writ of replevin was executed, can make no possible difference in that regard.

The avowed purpose of the offer, referred to in the third ' specification, was to show, by cross-examination of the Sheriff, that the lumber which is the subject of 'this action of trespass, “could not have been embraced in the writ of replevin upon which he made his return.” This was objected to because it was not cross-examination, and for the further special reason “that it is entirely immaterial to this issue, the only question being whether the lumber testified to was actually included in the lot of lumber replevied by the Sheriff, and delivered to the plainfiff in this issue, and which was found by a jury to belong to the plaintiff, the defendant in that issue having pleaded property in F. I. Page and N. K. Woodward.” There is no merit in either of these objections. The second is a reason in favor rather than against the offer. It is true, as therein stated, that the only question was whether the lumber in controversy was embraced in the replevin. The object of the proposed cross-examination was to show that it was not, and for that purpose we think it was clearly proper.

For similar reasons, the offers covered by the sixth, eighth and ninth specifications were erroneously excluded. Sufficient ground was laid to warrant the admission of the testimony suggested by these offers. It is unnecessary to notice the remaining assignments of error. Neither of them is sustained.

Judgment reversed and a .venire facias de novo awarded.  