Year: 1872

The following recent decision OF
the Supreme Court is printed as 6
matter Of no little interest to the
public:


JOHN HORTON VS.. j. l.. VOWELL-


OPINION.


In actions of replevin when the
plaintiff files with the clerk the af-
fidavit of himself, his agent or at
torney that he is entitled to the pos
session of the property, che shall
also at the same time give bond in
double the value of the property,
payable to the defendant, and con-
ditioned to be void if the plaintiff
abide by and perform the Judgment
ofthe Code in the premises" Code,
section 3577.


Section 1878 provides: "The clerk
will value the property according
to the description in the affidavit
for the purpose of fixing the penalty
of the bond"


BY Section 1892, "After the return
of the writ, if it appear that the
bond is insufficient in form, amount
of penalty, or in respect to the SOL
Vency of the sureties, the court may
remedy the defect by such orders as
are necessary, and may hold the
plaintiff in custody till said orders
are complied with; and the court
may make such other orders as may
be considered expedient to secure
the rights of the plaintiff or de-
fendant."


Section SS9S: ''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 sufli-
cient security"


This court has recently held that
an action of replevin cannot under
a proper construction of this statute
be prosecuted in forma pauperis.-
The reason for the rule is that by
the adoption of this form of action
and the execution of this writ, the
possession 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 de-
fendant for the return of the prop
erty in kind if he shall be success
full, or for the payment of its value
with damages for its detention.


The judgment does not sound in
damages, but it is intended in law
to secure the return of the prop
eFty.


If this action might be prosecuted
in forlna paUperis, worthless and nm
principled 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 cOmpensa-
ton.


Persons having rights, but unable
to give security for the value may
be redressed in other forms of ac-
tiOn in which they may proceed in
forma pauperis, and if there be
damage of, or loss, or destruction
of tbs chattels, place them in Gus
tOdy of law, by attachment.


The rule for the security, being
founded in the natural law, that one
shall not Wrongfully and under color
of law, appropriate to himself that
which belongs to another, the prop
erty being the thing to be secured,
costs which are mere incidents to
the pursuits of that property and
no part of it, are not embraced in
the security required and if the
costs a ded to the value, and dam
ages for the detention, exceed the
penalty of the bond the sureties are
l. 60 10


The fact that the law has provided
for the prosecution of almost every
right q 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 suffi-
cient security in this form of action.


After the property is secured the
action in all other respects is iu
nothing different from the more
common forms; it is therefore a
consequence, that as to such costs
as exceed the penalty of the bond
the plaintiff may prosecute the suit
in fOrma pauperis.


The provisions of the statue that
''the court may make such further
orders as may be considered expe-
dient to secure the rights of the
plaintiff or defendant" was not in
tended to, nor does it confer upon
the court the authority to make ex-
traordlnary rules or orders incon-
sistent with the general policy oi
the law protecting the rights OF
poor persons. In fact it cOnfers nc
further power than already existed
by statute and the general rules oi
practice. Reverse the judgment.


TURNEY, Judge.


y true copy, Jno. ii. Freeman


Clerk.