Oxley v. Cowperthwaite, Sheriff

Oxley v. Cowperthwaite, Sheriff. Replevin-bond. The sheriff is responsible that the sureties in a replevin-bond, shall prove sufficient on the termination of the trial. This was an action against the sheriff for taking insufficient sureties on a replevin-bond; and the question materially discussed on the trial, was, whether a sheriff is responsible that the sureties shall prove sufficient on the event of the replevin; or only that they were of good credit at the time of their entering into the bond ? * Sergeant, for the plaintiff, observed, that the defendant in replevin could not control the sheriff in accepting or rejecting the sureties, and therefore, he ought not, in justice, to be affected by their eventual insolvency; and he insisted, that, in law, the sheriff takes them at his peril, and is answerable for their proving- sufficient. Gilb. on Dist. 67, 176; 1 Bac. Abr. 207. Levy, for the defendant, stated the history, nature and duties of the sheriff’s office from Robertson’s Charles the Fifth, 1 Vol. p. 213, and contended, that if a sheriff discharged his duty bond fide, and with reasonable diligence, lie was not responsible for consequences which no human foresight could penetrate or prevent. [MAJORITY — Shippen, President.] Shippen, President. The only point for decision is, whether the sheriff is responsible for the sufficiency of the sureties at the time of taking the bond; or at the end of the suit, when the landlord has established his right to the rent for which the goods were distrained ? The case of a bail-bond differs, I think, in one respect, at least, from a replevin-bond; for the sufficiency of the former may speedily be inquired into, but the latter must wait the event of the replevin, which may be suspended for several years, until, perhaps, by the vicissitudes of trade and fortune, the sureties have become insolvent. This, therefore, is certainly a hard part of the sheriff’s duty. But there is likewise a hardship in the case of the landlord; for, by the replevin, he is divested of the immediate security of his tenant’s goods, and yet has no right to interfere in the choice of the sureties that undertake to see them returned when he has established his demand. From this view, then, it certainly seems reasonable, that he, who is exclusively authorised to take and judge of the security, should rather be affected by its eventual insufficiency, than he who has no right to question its validity. The authorities, indeed, are positive, that, if the sureties do not prove sufficient, the sheriff is liable; and, although the case must frequently have happened, no contrary decisions can be produced; for in Murdoch v. Will [ante, p. 341) and Welch v. Proctor, both lately tried here, the counsel put the eases upon the point of insufficiency of the sureties at the time of taking them; so that the present jioint never came in question. That the policy of the law in this respect bears hard upon the sheriff, may be a reason with the legislature to make some new provision for an inquiry into the sufficiency of the bail, in an earlier stage of the cause; but cannot be a justification for our deciding, at this time, contrary to an established principle. The Court are, therefore, clearly of opinion, that the verdict, on the question of law, ought to be in favor of the plaintiff. And, accordingly, the jury gave the plaintiff damages to the value of the goods at the time they were distrained, The same point was decided by the supreme court, in Pearce v. Humphreys, 14 S. & R. 23. Judge Duncah, who delivered the opinion of the court, alluding to the alleged hardship of the rule towards the sheriff, said, “ with all this impression of the hardship of the case, the court, thirty-eight years ago adhered to the ancient law, which no supposed hardship would justify a departure from: the decision of Oxley v. Cowperthwaite has ever since been received as the law of the land.” The acts of 10th April 1873 (P. L. 776), and 19th May 1871 (P. L. 986), make such provision for Philadelphia and Allegheny coun tie*.