
    Conrad Reed v. Samuel D. Carpenter.
    In replevin, a plaintiff may appeal from a voluntary judgment of nonsuit.
    This was an action of replevin, adjourned from the Supreme Court of Huron county).upon a question whether the appeal was correctly taken.
    The suit was brought in the common pleas. The plaintiff replevied the property, and on the return of the writ filed his declaration. The defendant pleaded non cepit, with notice of special matter in bar. At the term when, by the rules and usages of court, the cause stood for trial, the plaintiff became nonsuit, and judgment of nonsuit was rendered against him. At the request of the defendant a jury was impanneled to ascertain the value of the property replevied. A verdict of the value was returned, for which judgment, with a penalty of fifty per cent., was rendered. The plaintiff gave notice of appeal, executed a bond, as required by law, and brought up the record to the Supreme Court, where the cause was docketed. The defendant Amoved to quash the appeal upon the ground that the law did not permit the plaintiff to appeal from a voluntary nonsuit.
    Latimer, Williams, Whittlesey, and Newton, in support of the motion:
    The counsel for the defendant submit that the appeal is not sustainable,, and that the appeal-ought to be dismissed for want of jurisdiction.
    A remedy by which one or two litigants may acquire the custody of property, in the peaceable, and apparently in the legal possession of the other, is so harsh, and so liable to abuse, and may be made the instrument of so much injustice, that policy requires its discouragement.
    The legislature have adopted this policy, and from the manner in which they have treated the subject, it is manifest that it should be employed, in those cases only, where the right is clear, and it is equally manifest that it should not be adopted, to settle rights which are doubtful and contingent.
    With these feelings the rights of the parties are so modified by the statute (especially the statute in force at the institution of this suit), that the common law practice is abrogated, and a new course prescribed, by which a judgment for the value and damages is rendered against the plaintiff in case of failure, and this judgment is to be considered, not as an adjudication of the rights of the parties, but as a penalty upon the plaintiff, for rashly employing a remedy not adapted to his case.
    If we have illegally taken this property, he may still recover his damages in trespass, but he is not permitted to employ the arm of the law to take property from our possession, without abiding the risk of his proceeding, and paying the forfeit if he fail in maintaining his rights.
    The title of the vessel in dispute has never been acted upon, and he may still recover his damages for the taking in an action of trespass; the reason why he may not make another replevin, is, not because a former judgment concludes the rights of the parties, but because the possession of the property is already his.
    If this view be correct, we can discover no reason to distinguish *the practice in this suit from an ordinary nonsuit. We repeat, the rights of the parties to the property have not been adjudged; as in all eases, if the plaintiff fail, he incurs the liability of the costs, which were intended as a penalty for asserting unfounded claims; so here he incurs a penalty similar in kind, and only differing in degree because the nature of the remedy requires a greater security against abuse.
    It may still be urged that the suit requires both parties to be actors — that any termination of the suit necessarily concludes their rights; if such be the opinion of the court, then we submit that the plaintiff, by becoming nonsuit, has made a voluntary abandonment of his claim, which, in this suit, he is not permitted to revive; that the only open question is the value of the vessel, which the statute secures to us, and which alone he will be permitted here to contest.
    Hopkins, in support of the appeal:
    It is contended, on the part of the defendant, that a nonsuit of this kind can not be appealed from. In answer, it might be conceded, that if it were any other action except replevin, the position taken by the defendant’s counsel would be tenable; for in every Other action the plaintiff would have no need of appealing. He could reinstate himself before the same court by commencing a new action, and suffer no injury by the former, except the trifling cost which had accrued thereon, and thereby have his day in court. But in the present action the defendant is virtually plaintiff, because both parties are actors in it. Under this view of its nature., this court has recognized the genius of the action by retaining the cause in this court. This is giving the defendant the full advantage of the plaintiff, which he has become in fact. The next question is, could the defendant have appealed and had a trial before this court, had he made default and a judgment been entered in favor of the plaintiff for his damages on that default? I think the court would have entertained no doubt in the last case; for by section 99 of the judiciary act, in civil cases, an appeal shall be allowed of course to the Supreme Court from any judgment or decree rendered in the court of common *pleas, in which such court had original jurisdiction. Now shall the plaintiff, after having become defendent by operation of law, for he must be so considered by section 52 of said act, which recites that “it shall be lawful for the plaintiff in replevin, and for the defendant or tenant in every other action, to plead in any court of record, with leave of said court, as many several matters as he shall think necessary for his defense,” etc., be put in a worse situation than he would have been had he been the original defendant? I think the genius of our laws and that of the action will not allow it. The whole cause is, I think fully in this court, over which the court can exercise all its judicial authority. ■
    By section 3 of the judiciary act, the court are not confined, in their jurisdiction, to the particular processes therein named, but may issue all other writs not specially provided for by statute, which may be necessary to enforce due administration of right and justice throughout the state, and for the exercise of their jurisdiction agreeable to the usages and principles of law. By the authority given here, the court have full power to issue a judicial writ out of the original record to replevy as often as the plaintiff becomes nonsuit, which, is given by the usages and principles of common law, and by which the return of the property to the defendant was never irreplevisable, in this action, whether the non-suit of the plaintiff had been before the avowry or after, or before or after issue joined; because where the defendant had judgment for a return on a nonsuit, though after verdict, that judgment was not founded on the verdict, but on the default of the plaintiff by withdrawing himself at any continuance day after the verdict; so that though the defendant had return, yet he had not the justice or legality of his caption established by such judgment; and therefore as long as the caption and detention was not determined by the judgment of the court so long they allowed the plaintiff, after his own nonsuit, to take a new replevin. Gilbert’s Law of Replevin, 233. By deduction from both the above authorities, this court has full power to issue a new replevin; or this court has, by the above section of our statutes, authority to follow the usages and principles of laws which were in force and in use at *the adoption of the constitution of the United States, and which are in no wise invalidated by any law or custom of our state, to issue a writ of second deliverance, which is given by statute of West. 2, c. 2, and, like that of the new replevin, is a judicial writ issuing out of the original record of the first replevin, in which the nonsuit was; or this court may waive the formality of either of the above writs, issuing, in fact, as they do, in cases of writs of inquiry of damages, and order the sheriff again to call the plaintiff in this court, and, if he answer, the cause shall be fully before this court on its original merits and pleadings. By all the. usages and principles of law, from which we can gain any authority for a precedent, the plaintiff could always be reinstated before the court, after his non-suit, and have his day in court upon the merits of his cause; and if he can not, in this instance, it will be an anomaly in the annals of civilized jurisprudence. Suppose the judgment, in the present case, had been de retorno habendo, with fifty per cent, damages, by the court for the defendant, would there have been any doubt in the minds of the court but that a new replevin, or a writ of second deliverance, or some other appropriate and adequate proceedings might have been had by the plaintiff, to bring his whole cause before the court and put the defendant upon the defense of the justice and legality of his caption and detention of the property. An assessment of the.value of the property is, by our statute, awarded to the defendant instead of the judgment de retorno habendo. The principles of law, then, are not at all altered, and the same proceedings may be had as upon that judgment.
    It was not, nor could it have been the intention of the legislature, that by changing the form of the judgment from a return of the property in specie to an assessment of the value to the defendant, should take away all the common-law usages, and former precedents, which have been so satisfactorily established in principle, by all former ages, when the action of replevin has been known. One of the vital principles of this action is, to try the justice and legality of the defendant’s caption and detention of the property. The legislature could never have intended that such a judgment of nonsuit should be final and irreplevisable, in the first instance, and all remedy against the wrong-doer gone, with not only the loss of his property, but fifty per cent, by way of fine for his non-attendance. If this was the intention of the legislature, they have completely destroyed one of the most salutary actions for the unjust caption and detention of property which was known to the law.
    In the present case, the defendant denies the caption, and sets forth three several matters in a notice which is no part of the record. Now, upon which of these several counts, as it were, has the court below assessed; or will this court re-assess the value of the vessel to the defendant? There is no record authority to ground that judgment upon. He has spread nothing upon the record to show that he had any right to have the value of the property assessed to him. Therefore, the moment the plaintiff is out of court; the defendant is also, unless his word is tantamount to a record.
    Had the defendant set forth the several matters, in an avowry, which he has in his notice, under the issue of non cepit, it would have been bad on general demurrer, upon a motion in arrest or upon error. The avowry being in the nature of a declaration, the avowant, as all other plaintiffs in all other actions, ought to show to the court a definite right in himself to have return, or the value of it, by the record of the case before the court; because, unlike all other actions in the law, he turns round, when the plaintiff has become nonsuit, and continues on the action to judgment, as plaintiffs do in all other actions on the default of the defendant. It would be a perfect novelty in law, either in debt or assumpsit, where the defendant had pleaded an offset, that after the plaintiff became nonsuit, and out of court, the defendant should proceed to obtain judgment for a larger sum of debt or damages; for the judgment is, that the defendant go without day, and the plaintiff in mercy, etc. But in the replevin alone do both parties act, and when one party makes default the other proceeds on with the suit; for, by the above section 52 of the judiciary act, the defendant is considered to act most properly as plaintiff. Here is a plain and evident exception of this action from the laws and rules which govern all other actions, and the laws and rules which govern non-suits of all other ^actions are not at all applicable to this action. If they were in any way applicable, the defendant could not appeal from a judgment on his own default, and therefore the provision of. section 99, above recited, would be a nullity.
    This case is a new case, and will, in all probability, not only stand as a precedent and authority for all the inferior courts throughout the state at the present day, but will be considered as a law to govern posterity. And what will future generations think of a decision where no positive statute applicable to the case, no course of common law or ancient statute was pursued, and no record evidence of any definite right which the defendant had to the property appears,’ and still the plaintiff could not have the justice of his cause tried? If such a precedent should be established at this time, they must be struck with the injustice of the practice, and strike out and pursue a contrary course shortly, or this action must become obsolete altogether.
    
      This court has, from section 3 of the judiciary act, authority to. make new writs where none can be found appropriate, like the old officina brevium, or establish any new course of' practice for the advancement of justice or equity throughout the state.
    It would be highly opprobrious to a republican government, and especially to a state whose greatest boast is that she has cast off all the shackles of ancient monarchial barbarism, and that her citizens are alone to be protected and governed by equal laws which give every man his due, if a solitary case could be found upon her records in which a villain had triumphed over justice for want of a precedent to guide and direct the injured party, in case of accident, or against the finesse of artful knavery. Yea, more so would it appear, when viewed in comparison with the ready means afforded the parties, which were ever devised, on the spur of the occasion, by the ancient judges of that monarchy, in times of ignoi’ance and’ferocity, who adopted a course of practice so conformable to the spirit of justice that, by a succession of ages it became settled law, that if any defect of justice happened at the trial by surprise, inadvertence, or misconduct, the party might have relief in the court above by obtaining a new trial; or if, not-withstanding '-¡:the issue of fact be regularly decided, it appeared that the complaint was not objectionable in itself, or not made with sufficient precision and accuracy, the party might supersede it by arresting or staying the judgment. And the courts adopted, even in those early times of monarchy, a maxim, that in all cases of moment, where justice is not done upon one trial the injured party is entitled to another. And those judges, if they transcended their authority, they erred on the side of justice, in whose aid they did it, and that posterity might have a guide and example.
    And this court, although they may at this time have to act without any direct authority in this state, are about to make one for future generations ; and it would be altogether more satisfactory, in forming a precedent, that it should be in aid of justice, where no positive statute could be found to govern them, rather than the party should be driven from the court, without an investigation of his complaint, with great loss and injury, and the doors of justice closed against him forever. And it is much to be hoped, that among the innovations of this enlightened age, while the courts forego and cast off many of the ancient formalities of coming to justice in a cause, that they do not lay aside the substance, and substitute the shadow for the reality.
    It is urged by the defendant’s counsel, that this is an action altogether given by the statute of this state, and that no common law principles or ancient statute comes in to govern any part of the proceedings in it. But I would ask the gentlemen in what part of the statute the form of the declaration, the plea, the kind of testimony to be given, are to be found? How far, I would ask, could this, or any other court, proceed in the unsettled state of practice in this state, were they to bo confined to the letter of the statute only, and call no other authority or precedents to their aid? The statute merely gives the skeleton of the action of replevin, and the usages and the principles of common law and ancient statutes, in force at the adoption of the constitution of the United States, must give that cadaverous figure life, strength, and activity. Prescribe these and you prescribe all common sense. Even the incipient and all the subsequent movements can not be had without them.
    *It would derogate from the dignity of this court .to be thus confined to the letter of the statute, and assimilate it to that of a common justice of the peace, who is confined to one act only, and who does not think himself authorized to bring to the aid of his judgments any principles of common law, and often very little common sense.
   Opinion of the court, by

Judge Hitchcock:

At an early period of the judicial history of the State of Ohio, it was determined that an appeal could not be sustained from the court of common pleas to the Supreme Court from a judgment of nonsuit.

The reason which operated upon the court in giving this construction to the statute undoubtedly was, that such judgment did not conclude the rights of the parties. It was not final. The plaintiff might, at any subsequent period, recommence his action, and prosecute it to final judgment. The judgment of nonsuit would be no bar. So uniform were the court in enforcing this rule, that the legislature thought proper to interfere, and on February 4, 18Í3, enacted a statute, providing, in substance, that where the nonsuit was ordered by the court of common pleas in consequence of a defect of testimony, or for any other cause, the plaintiff should have the right of appeal. From, this statute no other inference with respect to the intention of the legislature, than this, can be drawn, that where the nonsuit was voluntary, the plaintiff should not have this right; and from that period to the present, such has been the uniform decision of the court. Such being the case, the court would not hesitate to sustain the present motion, were the action of a different description, and did we suppose that by pursuing that course we should be carrying into effect the intention of the legislature, in securing to parties litigant the right of appeal.

The action of replevin is one of a peculiar nature; both parties are actors. In this state it is regulated by statute. By section 5 of the act of January 22, 1813, the statute in force when this suit was commenced, it is provided, that “if the plaintiff becomes nonsuit, or on trial the jury find the defendant not guilty of taking the goods and chattels *from the possession of the plaintiff, or find that such goods and chattels belonged to the defendant, the value of such goods and chattels shall be ascertained by the jury, and the court shall render judgment for the defendant, for the value so found, with fifty per cent, damages, and interest from the time of their being replevied.” By this section it appears, that after the plaintiff becomes nonsuit, a judgment is not thereupon, as in ordinary cases, rendered for the defendant to recover his costs. The situation of the parties is changed. The defendant becomes plaintiff, or actor. He claims to recover not only his costs, but also the value of the goods and chattels replevied, together with damages. A jury is impanneled to ascertain this value, and return a verdict accordingly. Upon.the verdict of the jury the court render a judgment for the value of the property, together with fifty per cent, penalty, or damages and interest.

This judgment is final. It is not, strictly speaking, a judgment of nonsuit. The plaintiff can not afterward recommence his action of replevin, for the property is already in his own possession. It is a judgment whereby the defendant recovex-s the value of the propex-ty and damages after he becomes actor in the case ; and in its effects may, with more propriety, be assimilated to a judgment by default, than to a judgment 'of nonsuit. The propriety of sustaining an appeal, under our statute, from a judgment by default, has never been doubted, and the same reason applies for sustaining the appeal in the present case, as in one of that description.

The motion to dismiss the appeal is overruled, and the cause continued.  