Belt vs. Worthington, et al.-1831. principle seems to have been overlooked by the court below. The judgment for a return, legally and morally bound the plaintiff to restore the possession to the defendant. The writ de retorno habendo was intended to enforce this obligation, and the replevin bond was designed to afford the defendant an additional security, for the performance of such judgment as might be rendered. If then, the property is removed, so that the defendant in replevin is compelled to sue on the replevin bond, the measure of his damages should be the value of the property which the plaintiff, in replevin, was adjudged to restore. By adopting this measure, the plaintiff will be deprived of all inducement to eloign the property, or in any manner to resist the execution of the judgment for a return. But it is said that the action of replevin is sui generis, and this may be affirmed of every action; but all actions have this common design, to administer justice between the parties. It is said the non-suit does not settle the title, which was therefore liable to be questioned in another suit. In the first place, it is answered, that a writ of replevin will not lie after a non-suit in a former replevin. The action of replevin is therefore sui generis, so far that a non-suit is a conclusive bar in any subsequent action. In the next place, the judgment for a return consequent upon the nonsuit, is conclusive of the right of the defendant to a restitution. The condition of the bond is, that the property shall be returned if a return shall be adjudged. The judgment must, therefore, conclude the obligor from alleging any matter beyond the judgment, as a justification for delaying the return; it is equally conclusive as to the damages. It may be said, that the possession of the defendant in replevin may have been qualified, his title may have been defective, and he ought not to require damages to a greater amount than the fair value of his interest in the property. The plaintiff may avoid excessive damages by complying with the judgment; if he will retain it against the judgment, he ought not to be permitted to speculate upon the nature of the defendant's title, in order to lessen the damages. The replevin, in this VOL. III.-32 Belt vs. Worthington, et al.-1831. State, issues upon a mere suggestion of title in the plaintiff; it transfers the possession from the defendant to the plaintiff, and may, therefore, be made an instrument of great fraud, if the plaintiff, after a judgment against him, may rely on his possession thus obtained, and compel the defendant to show a clear title, in order to obtain damages to the value of his interest; and the objection loses all its weight, when it is considered that the damages recovered will be held by the defendant in lieu of the property, and subject to all claims which existed against the property itself. There is no case of an action founded on contract, in which evidence has been admitted in mitigation of damages. In some actions of tort, as for libel, slander, and such like, in which there can be no certain measure of damages, matter which extenuates the moral turpitude of the injury, may be offered in mitigation, as matter which increases its moral enormity, may be offered in aggravation of damages. Such evidence is admitted upon a very clear principle; it is necessary to determine the precise character of the wrong which is to be redressed by the recovery of damages; but in this case, the value of the property furnishes the best measure of damages sustained by the party who is adjudged to be entitled to the return; and more particularly, as the action is brought upon an express contract to comply with the judgment for a return. In an action upon an appeal bond, the merits of the original judgment cannot be questioned in mitigation of damages; and for this plain reason, that the defendant has bound himself to pay the judgment, in case it should be affirmed. It is said there is a difference between the cases; but the distinction can be asserted more readily, than proved. If any evidence in mitigation can be offered in an action upon the replevin bond, it must be on the ground, that the action is a continuation of the action of replevin; but property might have been pleaded in bar by the plaintiff in replevin, and it is a general rule, that matter which might be pleaded, shall never be offered in evidence in mitigation of damages. It is upon this principle, that matter which Belt vs. Worthington, et al.-1831. might have barred the original judgment, is not admissible in an action upon the appeal bond. It is not necessary to show that the defence was actually pleaded; if, therefore, the evidence is admissible in the present case of a non-suit, it must be equally admissible in the case of a judgment rendered upon verdict. Johnson for the appellees. The question to be discussed is, is a plaintiff in replevin, who fails to prosecute his suit with effect, liable for the whole amount of the property in controversy? The object of the replevin bond is to put the defendant in the situation he would have stood in, if no suit had been brought, or in other words, to indemnify him against the consequences of the suit. Suppose there had been a retorno habendo awarded the defendant in replevin, and plaintiff had subsequently non-prossed his action; will it be pretended, that in an action on the replevin bond, the defendant in the last action could not give in evidence those facts, for the purpose of protecting himself against a judgment for the full value of the property? the only effect of suffering a default, in an action on the bond, is to admit, that plaintiff had a right to sue upon it it admits the right of possession in the property replevied, to have been in the present plaintiff, and no more. Suppose the owner of a slave hires him to a third person for a certain period, and within the period replevies him, and afterwards non-suits his action; will it be said, that in an action on the replevin bond by the hirer, the owner could not prove title, to prevent a recovery against him for the full value of the slave; if he could not, then the replevin bond, instead of being a mere indemnity, would place the hirer in a better condition than if no suit had been brought; he would recover the full value of the negro, when he had but a temporary right to his services. The effect of a judgment by confession, or nil dicit, in an action upon a bond with a collateral condition, is not to entitle the party to the amount of the penalty, but only to the damages Belt vs. Worthington, et al.-1831. actually sustained; and any evidence showing or limiting the extent of the damages, is proper for the jury. The proof in this case, was not to defeat the action, but simply to mitigate the damages. He referred to 6 Harr. and Johns. 469. ARCHER, J., delivered the opinion of the court. The judgment by default in the replevin bond against the defendant, only admits, that he did not prosecute his writ of replevin with effect; and it is incumbent on the plaintiff in the action, to show the damage which he has sustained by the failure to prosecute. For this purpose, he has offered in evidence, the proceedings in replevin, in which the bond was taken, by which it appears that the replevin was executed, and the goods delivered to the defendants, and that instead of prosecuting the writ with effect, the suit was, by their order, stricken off. Upon the execution of the writ of inquiry, the plaintiffs sought to recover the value of the goods, which, from the proceedings, appear to have been delivered to the defendants, and not returned; and in mitigation of the damages, the defendants offered evidence to show title in them, to the goods, at the time of the replevin sued out. Its admissibility has been questioned, which forms the subject for our consideration. If the judgment of non-suit, which followed, or ought to have followed, the order to strike off the suit in replevin, had been conclusive of the rights of the parties to the property in controversy, the evidence would have been clearly inadmissible. But we apprehend, that no right has been settled between the parties to the suit, which should induce the rejection of the evidence. The right to have the return of the goods, is the only consequence of the judgment. The title to the goods is in no manner settled by it, and the defendant could not, therefore, be estopped by the proceedings, from an effort to mitigate the damages, by setting up a title to the goods. The object of the law in prescribing that a replevin bond shall be entered into by a plaintiff, before he should have Yates and McIntyre vs. O'Neale and Smith.-1831. the benefit of the writ, was only to give indemnity to the defendant. If, in truth, he had no right to the property, at the time of the institution of the suit, the rejection of the evidence, by putting it in his power, to recover the value of the goods, would enable him to overreach a just measure of indemnity, and inflict upon the plaintiff a penalty which the law never contemplated. No argument can be deduced against the admissibility of this evidence, from the principles applicable to recoveries on appeal bonds, taken from actions on money contracts, where the judgments, by default, are as conclusive as upon verdicts; because, in the proceedings in the replevin suit, which gave rise to this replevin bond, nothing has been done which is at all conclusive upon the parties, with regard to title; and the action of replevin, being an action sui generis, the recovery on the replevin bond, ought to be moulded in such a manner as will best subserve the principles of justice. Whether such evidence would have been admissible, had the pleadings in the action. of replevin assumed other forms, it is not proper now to determine. We may be permitted, however, to say, that the question must always be regulated by a reference to the rights decided in the action, and the nature and character of the bond. JUDGMENT AFFIRMED. YATES and MCINTYRE US. O'NEALE and SMITH.-Decem ber, 1831. The act of 1821, ch. 232, was not designed to prevent the mere sale of lottery tickets, or to impose upon the seller the necessity of obtaining a license therefor. Its prohibitions only extend to the opening, setting up, exercising, or keeping any office or other place, for selling lottery tickets, or registering the numbers, or publishing the setting up, &c. without having first obtained a license for that purpose. A contract between A and B, by which the latter agreed to become the agent of the former, for the sale of lottery tickets, account for, and remit a |