#### Saunderson Plaintiff in Error, *vs.*Lace, Administrator of Peck, Defendant in Error.

Where the Plaintiff in Replevin enters a discontinuance of his suit, and a writ of inquiry is awarded to ascertain the value of the property, and assesses the damages, which is dono, and judgment reté-dered'thereon, it is very questionable if the Court beiforo which such proceedings are had, can exercise tho authority of setting aside such assessment and the.judgment entered thereon.

Though it is competent for the parties to settle á suit, yet if judgment'is obtained for the damages of th'e party, it cannot be set asid® until reversed by a Court having jurisdiction to that effect. The judgment cannot be collaterally impeached by showing any thing *dehors*the Record.

It is erroneous for a Judge to charge the jury as to the effect of testimony, or as to what that testimony amounts, and what result it produces. The jury should be left ffeé to judge without dictation. Where a plaintiff in replevin discontinues his suit, the consequence, and necessary result must be a liability for the property taken, and the damages for detention; and the defendant in that case may elect to li&vé a réturn arid his dam'kgést

*232By the Statute o£' Wisconsin the defendant in replevin, under the plea, of *non detinet*is entitled to a return of the property replevied and damages.

Jjilrror to the l¡ate U. S., District Coui;t for Milwaukee County.

The action was replevin in. the *detinet,*for- the detention of a schooner, the property of Thomas H. Peck, and her tackle, apparel &c.. The suit was commenced in April 1843, and the property replevied, and appraised. At the June term of that year the plaintiff declared in accordance with his writ. . At the same term the defendant pleaded *non detinet.*As of the same term the plaintiff filed a *nolle prosiqui*in the cause. On the same day the defendant waived a return of the property an.d. elected to take judgment for the value and thj^damage.sffor the detention; and a jury was empanneled^ and foup,d the value of the property to be #800, and: assessed the damages for the detention at #64 87; and- on.the same day the plaintiff filed a motiop, to set aside the inquest upon the ground, first, that the Judge should, have allowed the plaintiff to prove, that the suit had- been settled; between the parties, and second-,, that the cause was settled and thp discontinuance entering in pursuance, of an agreement between the parties that it should be no further prosecuted. At the November term of tfie Court, the motion for setting aside the inquest was argued and the motion granted, and an *alias*writ of inquiry awarded. At the same term the writ was executed andthe jury returned a verdict of six cents damages, in favor of the defendant, and judgment was entered thereon.

On the execution of the writ of, inquiry of damages, there was considerable proof given to establish and to re^el the fact,, that there was an, aplicable apd, settled agree*233ment between the parties for the discontinuance of the suit. Upon such testimony thus given, the Judge charged the jury, “ that it was competent for the parties to settle the suit, and that such settlement if made, was binding; and if m,ade with the design to fix. the bail, it would operate to. their discharge. That if the jury believed the testimony of the witnesses, it amounted to a release of Peck. That the finding of the jury fixes the extent of the liability of the bail. A rpliease of Peck releases the bail. That if the Court had observed the state of the pleadings in this case, a writ of inquiry of the value of the property would not have been awarded. The- pleadings in.thq case do not entitle the defendant to a return of the property or its value.

That the finding of a nominal sum would carry the costs, which the plaintiff should pay before satisfaction could be entered.”' After the Jury had retired to delibe-, rate, they returned into Court and. asked of. the- Judge further instructions, and the Judge instructed-, them, that the testimony amounted to a; release of the Plaintiff and his bail,., of a claim by the defendant to the property and damages, and that a nominal sum to the defendant would carry the costs.

Exceptions were taken to the principal part of the charge and instruction of the Judge to the jury.

In *this*Court, the. plaintiff in error assigned for error in the Court below, variousjnatters, as follows:

1st. That the Court below erred in setting aside the inquisition first taken of the damages to the defendant below; and in awarding a new writ of inquiry.

2d. That the .Court erred in admitting the deposition of Saunderson to be read to the jury, and also of other' witnesses.

*2343d. That the district Judge erred in his instrüctions to the jury as originally given, and as afterwards repeated.

Other exceptions wére taken, but these seem to comprise 'the most notable.

*A. D. Smith fy-J. E. Arnold,*for Plaintiff in Error.

*J. Holliday,*for Defendant in Error.

'On the arguméiit it was insisted 'for the plaintiff in er-rbr that fit the time the defendant in error entered a discontinuance of the action, the defendant below, under the state of the pleadings was entitled to the verdict for damages, which was then found by the jury, and 'to the judgment which was then rendered thereon. And in justification of this, cited *Statutes of Wisconsin, page*274, § 19; *p.*275, § 30, 31, *and*32; *Story’s Pleading,*449, 450; *3d Mass. Rep.,'*199; *Gilbert on Rep’n,*169; *Graham’s Practice,*603; *8th Petersdorf’s Ab.,*387, '393; 2 *Yeats,*531.

2d. That after the judgment, by discontinuance, the bail not objecting''thereto, the Court below'should not havé received evidence of ‘a previous 'Settlement between the parties, to defeat ’the defendant bélow frota recovering the value of the property replevied and his damages for detention ; that evidence being only admissible upon the trial on the issue joined, or upon a plea of *puis darrein*continuance'; 1 *Saunders Pleadings fy Evidence, p.*23; *Graham’s Pr.,*'296.

3d. That the matte'r of a settlement between the parties, and the release of the bail thereby, being a question of fact for the jury to decide; and there being conflicting, and indecisive evidence given updn that subject, it should have been left to the free decision‘Of the ju'ry to have com *235siderefi'the force and effect of such evidence; and that the instructions of the Judge as to 'the force or effect of such evidence; or the instruction ’that the evidence given amounted to a settlement and consequently a release of the plaintiff below; or that it 'Operated to release the plaintiff below and his bail, was erroneous and unauthorized by law.

On the part of the plaintiff below, it was insisted that under the plea in the Court below of *non detinet,*the defendant below was not entitled to a return of the property replevied, or to damages for the detention thereof; and cited 6 *HilVs Rep.,*613. That the settlement oi the parties was competent to be shown in mitigation of damages; *1 II. Blachstone’s Rep.,*24; 3 *Mass. Rep.,*199; 13 *Wendell,*496; 21 *Wendell,*300; *Graham’’s Pr.,*901.

*By the Court.*

Whiton, J.

This was an action of re-plevin, brought by Peck, the plaintiff below, in the late District Court for Milwaukee County, for the “ Schooner Liberty, with her anchor, chains, small boat, and all other -apparel and furniture to said schooner belonging, together with the enrolment and license, for said Schooner Liberty.” The action was in the *detinet,*and the plea *non detinet,*simply. The writ was served, as appears by the Sheriff’s return, by replevying the schooner, together'with her furniture, tackle and apparel, and delivering the same to the plaintiff, who gave bond as the law directs.

Subsequently to the filing of the plea, and without a trial, the plaintiff filed with the Clerk of the Court in vacation, a written stipulation that a judgment of discontinuance should be entered in the cause; but the Judge, as appears from the bill of exceptions, would not permit a judgment of discontinuance to be rendered upon the stipulation thus *236filed. Afterwards, however, the plaintiff, as the record shows, at a term of the Court held on the second Monday of June, A, D. 1844, discontinued the suit; whereupon, the defendant waived a judgment for the return of the property replevied, and elected to take his judgment for its value under the Statute. This judgment was accordingly rendered, and the value of the property was thereupon assessed by a jury at the sum of eight hundred dollars; the jury also assessed the damages for the detention of the property, and fixed the sum at sixty-four dollars and eighty-seven cents. This assessment of the value of the property, and of the damages for its detention, was set aside by the Court, on motion of the plaintiff’s attorney, and a new wri.t of inquiry awarded. The jury empanneled by virtue, of this writ, at a subsequent term of the Court, assessed the damages to the defendant at six cents; upon which assessment, the Court rendered, a judgment m favor of the defendant for the said damages and for his costs. It is very( questionable whether the Court was warranted in reiidering any judgment upon this assessment of the jury. A judgment had been previously rendered by the Court in favor of the defendant, forthe value of the property replevied, and the object of the writ of inquiry was to ascertain the value of the property, as well as the damages which the defendant had sustained by reason of its detention; and yet the j-ury assessed the damages merely, and did not find at all in relation to the value of the property. This it was clearly their duty to do : *Statute concerning Replevin,*§ 30 *and*32. They manifestly discharged their duty very imperfectly, and it is very doubtful whether the Court could properly enter a judgment upon their assessment. But this *237is not assigned as error, and has had no influence upon the Court in disposing of the case.

Various exceptions were taken by the defendant to the ruling of the Judge, in relation to the admissibility and effect of the testimony introduced by the plaintiff to the jury empanneled to make the assessment. The testimony offered by the plaintiff and objected to by the defendant, which was admitted by the Judge, tended to prove a settlement of the suit, and of the controversy in regard to the schooner by 'the parties, and 'consequently a discharge of the liability of the plaintiff. The'defendant contends that this was improper, as the jury had nothing to do but to assess the value of the property, and damages for its detention.

Undoubtedly-a judgment maybe discharged by the parties to it, like any other obligation, and when the discharge is proved in a proper manner, the obligation created by *the*judgment ceases; but it is to be observed that the testimony in question related to a settlement of the suit previous to the time when the judgment was rendered in favor of the defendant for the value of the property. This judgment entitled him to recover the value of the property, as well as damages for its detention from the plaintiff; it was in full force and not reversed, and although in its nature interlocutory, until reversed, was conclusive between the parties; the plaintiff could not impeach it collaterally, nor rely upon transactions which took place between himself and the defendant previous to its rendition) to affect the liability created by it. It is clear, then, that this testimony which tended to prove a settlement of the suit by the parties in thejjwinter of 1843-4, or in the spring of the latter year, when the judgment \fras not rendered until *238June succeeding, was inadmissible. B.ut, lips.-, said that this testimony was admissible in mitigati<$i of damages,, and was. .admitted on that ground by .the Judge. I cannot see how this.-, affects the question. The plaintiff might have shown in mitigation of dam ages,,, that the property, after, .being, delivered to him by the Sheriff, had been redelivered to the defendant, or that he had retaken it. *Dewitt vs. Morris,*13 *Wen.,*496; *Russell vs. Butterfield,*21 *Wen.,*300. But this testimony (if it proved any thing) directly impeached the'judgment which the Court had previously rendered, and cannot be regarded as tending to prove any fact, which can properly be regarded as mitigating the damages. Another exception to the ruling of the Judge, was in relation to his charge to,, the jury upon the effect of the testimony. He. charged the jury that if they believed the testimony ,of the witnesses, it amounted to a release of Peck, and, a satisfaction, and that the finding of the-jury fixed the extent of the' liability of the bail, &c. I am of opinion that .the testimony taken together, will not bear this, construction. If it had been properly admitted — if the plaintiff could have; shown in this way that the judgment which the defendant-had recovered against him had been wrongfully obtained,, it still 'falls short of establishing the fact of a release of the plaintiff. The testimony introduced by the defendant,, shows that the plaintiff discontinued, his suit with a full-knowledge that the effect of the discontinuance would be a judgment against him for a return of the property, or for its value, as the defendant should elect. It is hardly credible that he should have acted in this way if there had been previously a settlement of the suit between the pap-ties; at least the jury should have been permitted to^pu,! *239such a construction upon the testimony as they should think proper.

It was said in the argument by the. counsel fpp, the defendant in error, that the defendant bfelow was not entitled tp a judgment for a. return under the plea which had been put in, and he cited the case of *Pierce vs. Van*Dyke, 6 *Hill,*613, to maintain this position. I do not think this position well taken. By our Statute concerning the action of replevin, § 19, it is proyided, that “ such plea shall gut in issue not only the detention of such goods and chattels, but also the property of the plaintiff therein.” I do not understand the case relied upon, to be an authority to the extent claimed. On the contrary the Judge who delivered tho opinion of the Court, thought that under the Statute of New York, (which in-this respect is the same as ours,) the jury might so find as to entitle the defendant to a judgment for the return of the property, when the action was in *detinet*and the plea *non delinet,*merely. In this case there- was no jury called -to try the issue, but the plaintiff voluntarily gave the defendant, a judgment by discontinuance, apd thereby confessed all that the defendant could have proved under his plea.

Upon the whole, vye are of the opinion that the judgment of the district Court must be reversed. We give .no opinion as to the effect of the judgment against defendant in error, upon the sureties in the replevin bond.

Judgment reversed..