Mason v. Sumner

After stating the case, {ante pp. 313, 314,) Bowie, 0. J., delivered the opinion of this Court as follows: The first and second exceptions raise the question of how far the judgment in the action of replevin, concludes the obligors in the bond. The appellant contends, that wherever the title to property is in issue or might have been in issue in the original proceedings, that question becomes “res adjudicata,” and cannot afterwards in any subsequent proceedings be inquired into: he assimilates this to a case of sci. fa., where any defence which might have been pleaded to the original action cannot be set up against the sci. fa. In the case of Belt vs. Worthington, 3 G. & J., 252 , ARCHER, Justice, declared: “The object of the law in prescribing a replevin bond shall be entered into by a plaintiff before he should have the benefit of the writ, was only to give indemnity to the defendant.

If in truth he had no right to the property at the time of the institution of the suit, the rejection of the evidence by putting it in his power to recover the value of the goods, would enable him to overreach a just measure of indemnity, and inflict a penalty which the law never contemplated.” Repudiating the analogies sought to be established in that case, to judgments by default in actions on appeal bonds and money contracts, he said the action of replevin was “sui generis,” — “the recovery on the replevin bond ought to ³²⁰ be moulded, in sucb a manner as will best subserve the principles of justice,” * * * £ ‘the question (of admissibility of evidence) must always be regulated by a reference to the rights decided in the action, and the nature and character of the bond.” In this case, the obligors in the replevin, were permitted after non-suit in replevin and judgment by default on the bond, to show in mitigation of damages, that they had title to the articles replevied. The same general principle is announced by StephbN, Justice, in the case of Dugan vs. Tyson, 6 G. & J., 458 . This principle is exemplified most strongly in the case of Walter, use of Walter vs. Warfield et al., 2 Gill, 216. Where after judgment upon verdict rendered on pleas of non ccepit, and property in the defendant, and judgment for return of property in the action of replevin, upon an action on the replevin bond, against the obligors, the plaintiffs in the replevin, they, as defendants in the action on the bond, were permitted to show in mitigation of damages, that the property was not in the defendant, in the first action, and plaintiff in the second.

This case was argued before Aecher, Doesev, Chambees and SpeNCE, J., and affirmed without dissent. In the more recent case of the Cumberland Coal Co. vs Tilghman, 13 Md. Rep., 14 , the same doctrine is forcibly expressed. The theory of the action of replevin is thus defined by the learned judge, who, delivering the opinion of the Court in this case, says: “In this State, the action is most generally resorted to, for the purpose of trying the right of possession at the time of the issuing of the writ, and not to determine necessarily the absolute title to the property for all time. And this being so, it follows that if the plaintiff, at the time of bringing the suit, has the right to