Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-11-21
KEpLEv1n IN FoEnA PAUPERIs
The Supreme Court OF Tennessee and
the Federal Court Render Inpor-

The Supreme Court OF Tennessee and
the Federal Court Render Impor-
tant Decisions.
Below we give an opinion rendered some
time since by the Supreme Court Of Ten
nessee, relating to actions Of replevin and
the construction of the law pertaining
thereto. In this connection we would
state that his honor Judge Trigg, during
the present session of the United States
Circuit Court, In tbs city, also made a
similar ruling concerning actions Of re-
pleVin in lorna pGuperis, the case before
him being that Of Bloom vs.. Alexander.
The following is the case ruled in By the
Supreme Court:
JOHN HORTON VS.. ]. L. vowELL-oPINIoN.
In actions of replevin when the plaintiff
files with the clerk the affidavit of himself
his agent or attorney that he is entitled to
the possession of the property, "he shall al
so at the same time give bond in double the
value of the property, payable to the de-
PENDANT, and conditioned to be void if the
plaintiff abide by and perform the judgment
of the Code In the premises."-Code, sec
ton 3377.
Section 1878 provides: "The clerk will
value the property according to the descrip-
ton in The affidavit, for the purpose Of fix
ing the penalty of the bond"
By Section 1892, GAfter the return of
the writ, if it appear that the bond is insuf.
ficient in form, amount Of penalty, or in re-
spect to the solveney of the sureties, the
court may remedy the defect by such or
ders as are necessary, and may hold the
plaintiff in custody till said orders are COM
piled with; and the court may make such
other orders as may be considered expe-
dent to secure the rights Of the plaintiff or
defendant"
Section 1898: 'The clerk shall not be
exempt, by reason of such orders made by
the court, from liability for any damages
proceeding from his failure to take good and
sufficient security"
This court has recently held that an ac-
ton of replevin cannot under proper con-
struction of this statute be prosecuted in
forma pauperis. The reason for the rule ia
that by the adoption of this form of action
aud the execution of this writ, the posses
sion of the property, the right of which is
to be tried, is changed from the hands Of
the defendant TO those of the plaintiff, and
the suit being to ascertain the title to the
property in specie, and not merely for its
value in damages, security must be given to
the defendant for the return of the pro-
perty in kind if he shall be successful, or
for the payment of its value with damages
for its detention.
The judgment does not sound in dam
ages, but it is intended in law to secure the
return of the property.
If this action might be prosecuted in
forma pauperis, worthless and unprineipled
persons could and would possess themselves
of property to which they have no claim Of
right, and leave the true owner without the
means of redress or compensation.
Persons having rights, but unable to give
security for the value, may be redressed in
other forms of action In which they may
proceed in forma pauperis, and if there be
damage of, or loss, or destruction of the
chat,els, place them in custody Of law, by
attachment.
The rule for the security, being founded
in the natural law, that one shall not wrong
fully and under color of law, appropriate to
himself that which belongs to another, the
property being the thing to be secured,
costs which are mere incidents to the pur-
suits of that property and no part of 1t,
are not embraced in the security required,
and If the costs added to the value and
damages for the detention, exceed the PEN
atty of the bond, the sureties are not bound
for the excess.
The fact that the law has provided fer
the prosecution of almost every right a
remedy that may be resorted to in forma
pauperis, demonstrates the correctness Of
the construction given to the statute as
does the provision holding liable the clerk
for falling to take good and sufficient secu-
rity in this form of action.
After the property is secured the action
in all other respects is in nothing different
from the more common forms; it is there
fore consequence, that as to such costs as
exceed the penalty of the bond the plaintiff
may prosecute the suit in forma psuperis.
The provisions of the statute that ''the
court may make such further orders as
may be considered expedient to secure the
rights of the plaintiff or defendant" was
not intended to, nor does it confer upon the
court the authority to make extraordinary
rules or orders inconsistent with the gen.
ersl policy of the law protecting the rights
of poor persons. In fact it confers no fur
ther power than already existed by statute
and the general rules of practice. Reverse
the judgment. TURNKEY, Judge.
A true copy, Jno. 81. Freeman, Clerk.