Opinion
JUNE TERM, 1789.
DEBT upon a Replevin bond, after judgment de returns habends in the Replevin, and thereupon a return of Elongatur.
Sergeant, on the trial of the cause, offered witnesses to prove, that the goods had been tendered to the Plaintiff; and, therefore, that the condition of the Replevin bond had been performed. Levy opposed the admission of this testimony, and contended that no evidence could be received to contradict the Sheriff's return. See 12 Mod. 424. T. Raym. 485 7. 2 Mod. 10, 11. Cro. E. 872. pl. 9.
Sergeant, in reply, admitted, that some returns of the sheriff could not be traversed; but, he contended, that the return of Elongatur was not of that class. See 12 Mod. 426.
THE COURT over-ruled the evidence.
A question then arose, Whether the Jury could include the costs which had accrued on the Replevin, in their verdict in the present action. And THE COURT were clearly of opinion, that they could, and ought to do so.
Sergeans having suggested, that both the points in this case, had been otherwise determined in a case of Jackson v. Webb; Mr. President SHIPPEN said, that the matter was there left upon equitable circumstances to the Court.
Conformably to which was the verdict of the Jury.