Clark v. Wilmington Trust Co.

Headnote

Replevin—Action on Bond—Scope of Inquiry.

Ordinarily in an action upon a replevin bond no question can be tried which could and ought to have been tried and determined in the replevin suit, and therefore, where plaintiff did not appear when case was called for trial, defendant was entitled to a jury and trial to prove ownership and damages.

Action by John H. Clark against Wilmington Trust Company, Lucius C. Jones, county constable, and the Diamond State Warehouse Company. Verdict for defendants.

This was an action of replevin brought by the plaintiff against the defendants for the recovery of the possession of certain household goods and chattels seized and taken under execution by Lucius C. Jones, constable issued on a judgment obtained by the Wilmington Trust Company against the plaintiff, for the sum of one hundred dollars besides cost of suit. After the seizure of the goods, the constable stored them with the Diamond State Warehouse Company, and incurred expenses for storage in the sum of twenty-eight dollars. The goods were thereafter delivered to the plaintiff by the sheriff under the writ of replevin, the defendants' not giving property bond.

The case coming on for trial, the plaintiff was called, and not answering, counsel for the defendants stated to the court that he would not ask for a nonsuit, as the defendants’ remedy would now probably be on the replevin bond for failure of the plaintiff to prosecute his suit, and requested that he might have a jury and proceed with the trial for the purpose of proving the ownership

and value of the property replevied and defendants’ damages which he claimed amounted to one hundred and thirty-eight dollars and two cents.