Rogers v. Roberts

Miller, J., delivered the opinion of the Court. The appellant, Rogers, rented a house to one Roberts, and the latter being in arrear for rent for nearly thirteen months, the landlord distrained therefor and seized and carried away certain furniture in the house which was the property of Mrs. Roberts, the tenant’s wife. There was a fatal defect in the distraint papers, which rendered the proceeding void, and Roberts, the husband, recovered the goods in an action of replevin with $50 damages and costs, which sum was paid by Rogers, the defendant in that suit. Afterwards, Mrs. Roberts by her next friend and husband, brought the action in the present case against Rogers, of trespass cle bonis asporiatis, founding it upon the taking and carrying away of the same goods which were recovered by the husband in the replevin suit.

At the trial the verdict and judgment were in favor of the plaintiff for $100 damages, and the only material question presented by the record and brought up for review by the defendant’s appeal is, was there any error in the action of the Court in sustaining a demurrer to his second plea, and in rejecting his first and third prayers. This plea and these prayers assert the single proposition, that the plaintiff cannot maintain this action because her husband had recovered the same goods from the defendant, ⁵²² by the judgment in replevin, with damages for their detention, and she had authorized and acquiesced in the prosecution of that suit by her husband as a means of recovering possession of her property. It is the well settled law of this State that the right of possession at the time of issuing the writ, is sufficient to maintain or defeat an action of replevin, and, therefore, the judgment in that action does not necessarily, nor indeed ordinarily, determine the absolute title to the property for all time. Whoever is entitled to the possession at the time of bringing the suit, may maintain dr defeat the action, and as his right to succeed depends entirely on such right of possession, it follows, in reason, that his title to damages must be confined to the extent of the interference with that right.

Hence, if the right of possession covers all time as in the case of