
    CANTWELL CLARK vs. ROBERT ADAIR.
    The judgment for defendant on a plea of property in replevin is pro retorno halendo; but, if he cannot have a return, he may have judgment for damages to the value of the goods, &e.
    In an avowry for rent arrear, judgment is for the sum found due for rent, with costs, &c.
    The writ of replevin is not confined to distress for rent arrear; but may be used wherever one claims property in another’s possession.
    In ease of distress for rent, the condition of the replevin bond is prescribed by Dig. 364, to prosecute the suit with effect and satisfy the judgment; in other cases, the condition is to prosecute the suit with effect, and to return the goods, if a return be awarded.
    Writ of error to the Superior Court, New Castle county. Before John's, Jr., Chancellor; Bayard, Ch. Justice, and Milligan, Justice.
    The case below was replevin for a quantity of corn. The sheriff returned “Goods replevied, and delivered to plaintiff; and summoned defendant.” The defendant pleaded property in himself; and property in a stranger. On this issue the jury found for him, and assessed damages to the amount of $45 75; on which there was judgment.
    
      Booth, for plaintiff,
    now contended, that this judgment was erroneous, on the following grounds. At common law the defendant could in no case recover damages. In replevin he could not recover either damages or costs. This was remedied by statute in the case of an avowry or cognizance for rent arrear. That statute neither extends to this court, nor to this case. The action of replevin in such cases as this is a mere substitute for the action of trover; and it is to try the right of property. (6 Law Lib. 31, 86-7.) If, then, damages could not be given at common law and are not given by any statute applying either to this country or to the case, the judgment for damages is erroneous. The judgment should have been for a return of the property replevied, and for costs — judgment pro retorno haben-do. (6 Law Lib. 33; 91-2; 101-2; 109, 110.) We have no statute on the subject except the landlord and tenant act, which refers only to replevin for rent arrear.
    The bond taken by the sheriff from the plaintiff, on executing the writ of replevin, can only be, in such case as this, according to the common law or statute fVestm 2d., conditioned to prosecute the suit with effect, and make return of the goods, if return should be ordered. The bond provided in the landlord and tenant act in case of replevin on a distress for rent arrear, cannot apply to this case; and the condition of the bond could only be such as would make the plaintiff liable to the sheriff, though the damages recovered should be paid to the defendant.
    
      Rodney, for defendant,
    replied. — The action of replevin as anciently used in England, and in reference to which the plaintiff’s argument has been made, is a very different action in form and extent of remedy from replevin at this day, either in England or this country. Sir William Blackstone says, that replevin will lie only on a distress; but we know that, both there and here, the action has become the common mode of trying the right of property. Early, when this form of action began to be extended in England, the statutes cited were passed to extend the remedy by giving damages and costs to all the cases then embraced within this form of action. These statutes apply as a part of the common law of this country; and, by analogy, the remedy by damages and costs equally extends to the extended form of action. This whole subject is a part of our law by adoption and practice only; and in practice it has become a "very common and convenient mode of trying the right of property in goods or chattels. (2 Tidd's Pr. 798.) The parties go to trial on a plea of property; if it is found for the plaintiff, he, having the property, recovers nominal damages for the taking and detention until replevied; if found for the defendant, he recovers damages to the value of the property. This is much better than to turn him round to another action on the replevin bond. (1 Tidd’s Prac. 798; 3 Term Rep. 349; 4 ib. 509.) But if this judgment be wrong, this court would order the proper judgment to be entered, They will render such judgment as the court below should have rendered. If no other than the common law judgment, pro retorno habendo, could be rendered on a finding for the defendant, the court will now order that judgment to be entered. Other-erwise, the- defendant is without remedy. •
    
      Mr. Booth rejoined, that the principles of the common law, however old, (and the older the better) were the guide of this court in administering justice; and if those principles do not authorize any judgment for damages for the defendant in an action of replevin, then this judgment is wrong. He denied that the English statutes cited had application to this country as statutes, or as common law; but, if they had, they do not extend to the action of replevin in such case as this. He denied, also, that there was any practice, sanctioned by any decision of our courts, of assessing damages for defendant in an action of replevin for trying the right of property. Some instances of the kind may have arisen and passed without objection, but if such a custom exists,- unsanctioned by-the law, it ought to be abolished.
    
      On the second point he argued, that the court could not amend this judgment. The judgment is amendable during the term, but not after, and only by the court in which the judgment is rendered, for the whole matter is in their breast during the term. What has this court here to amend by? The defendant was not without remedy. This court might on setting aside the judgment, award a venire de novo, and send the parties again to try this cause before a jury.
   Chief Justice Bayard delivered the opinion of the court:

Bayard', Chief Justice.

The plaintiff in error brought replevin against the defendant for ninety-eight and a half bushels of corn in the ear. The property was replevied by the sheriff and delivered to the plaintiff. The defendant pleaded property; and, on the trial, the jury found a verdict for the defendant, and assessed his damages at forty-five dollars and seventy-five cents, being the value of the corn. Upon this verdict a general judgment was entered; and the error assigned is, that the judgment should have been pro retorno habendo, and not for damages. As the practice in this State in actions of replevin differs in many respects from the English practice,.and is in part regulated by act of assembly, and in part by the English statutes and common law, it may be well to say a few words on the subject generally. The writ of replevin in our practice is not confined to cases of distress, and to the tortious taking of property, but is used wherever one man claims property in the possession of another and prefers proceeding in rem for the purpose of obtaining possession of the specific property, rather than compensation in damages for its loss. The sheriff, upon receiving the writ, is bound to take security from the plaintiff before he can execute it; what shall be the terms of the security must depend upon the cause' for which the writ was sued out. If the property was taken by distress for rent, then the security is regulated by act of assembly, and must be by bond conditioned to prosecute the suit with effect, and fully and without delay to satisfy any judgment which shall be given against him. (Dig. 364.) In all other cases the security should be by bond conditioned to prosecute the suit with effect and to return the goods, if a return should be awarded under the statute of Westminster, 2d chap. 2, 13 Echo. 1, (1 Saund. Rep. 195, note 3; 1 Lord Ray. 278, Blackett vs. Crissop.)

If the defendant claims property in the goods, he is entitled to retain possession of them, upon giving bond to the sheriff, with sufficient sureties, conditioned for his appearance at the return of the-writ; and that lie shall fully satisfy any judgment which shall be given against him. The sheriff is bound to allow him a reasonable time to find such security. No writ of proprietate probando is issued; but the matter being returned by the sheriff, the suit proceeds in the court from which the writ issued. If the defendant, upon making claim of property, does not give the requisite security, the sheriff replevies the goods as if no such claim had been made; delivers them to the plaintiff and summons the defendant to appear at the return of the writ; and the suit proceeds.

The declaration may be either in the detinet or the detinuit; that is, the plaintiff may allege, as the case may be, that the defendant still detains the property, in which case damages may be recovered for the value of the goods, as well as for the unlawful caption and detention; or he may allege that the defendant detained them until the replevin was made, when he can recover only damages for the unlawful caption and detention to the time of the replevin. (Fitz. N. B. 159; 1 Chit. Plead. 159.)

The judgment for the defendant depends on the pleadings and verdict. In case of an avowry for rent, the matter is regulated by act of assembly (Dig. 304-5,) which provides, that “the jury upon the trial of the action, shall find the sum due for rent in arrear,” and “judgment shall be given for any sum so found or ascertained, as debt, with costs of suit, and like execution shall be had as on judgments for debt.” Cases not provided for by the act of assembly stand upon the common law. Under the plea of property, the defendant, if it be found for him, is entitled to judgment for the return of the property (pro retorno habendo) and damages for the taking upon the writ. (1 Salk. 93, Butcher vs. Porter, s. c., Vin. 249; 5 Mass Rep. 343, Powell vs. Hinsdale; 5 Serg. & Rawle 135, Easton vs. Worthington.) But that is not the only common law judgment, for it is expressly laid down by lord chief justice Hale in his commentary on Fitzherberts natura brevium, that “if defendant claims property, or says that he did not take, &c„ if in the meantime the beasts die or are sold, so that he cannot have a return, he may recover all in damages if it be found for him;” and cites Year Book 7; h. 4, 18; Fitz. N. B., 159, note c.

The property for which the writ was brought in this case is ninety-eight and a half bushels of corn, which is a perishable article, and which ipso usu consumitur; and, upon proof made at the trial that the corn had perished or been consumed, the jury might well give a verdict for damages, embracing the value of the corn, of which in such case the defendant could have no return, for that is the principle of the rule as laid down by lord Hale. As, therefore, the verdict in this case was given for the value of the corn, it must be intended that proof was made at the trial, that the corn had perished or been consumed, and then the verdict is well enough; and the judgment must follow the nature of the verdict, and cannot be pro retorno ha-bendo.

Booth, for plaintiff.

Rodney, for defendant.

Judgment affirmed.  