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1 Thomas Tremlett, Plaintiff in Error, Who Was Also the Plaintiff below, vs. William H. Nicholas, Def't in Error. Paper Book and Counter Statement of Defendant in Error 1850

handle is hein.trials/adhn0001 and id is 1 raw text is: THoMAs TREMLETT, Plaintiff in Error, who was also the Plaintiff below, WILLIAM H. NICHOLAS, Def't in Error. J Paper Book and Cuunter Statement of Defend- ant in Error. The abstract of proceedings and the history of the case are set forth with sufficient accuracy in the Paper Book of the plaintiff in error. Argument for the Defendant in Error. In the action of replevin both parties are actors. And the defendant in this case having the right to the judgment de retorno habendo might prefer the goods taken from him to damages. It may be true that a writ de retorno habendo is seldom executed. Yet that it is recognised by the law of Pennsyl- vania will appear from a reference to the cases: Wiedel v. Roseberry, 13 S. & R. 178; Easton v. Worthing- ton, 5 S. &. R. 132; Gibbs v Bartlett, 2 Watts & Serg. 34; Williams v. Smith, 10 S. & R. 202; .Huston v. Wilson, 3 W. 287; Moore v. Shenk, 3 Barr, 13. The words of the bond in this case are, that if the above bounden, &c., shall and will prosecute his suit against, &c., aiid shall and will make return qf the said goods, if return oJ the same shall be adjudged, and the sureties on the bond aro liable if the said goods are not returned. Now it is optional with the defendant, whether the defend- ant shall take his writ de retorno habendo, or shall proceed at once against the sureties for damages; if this be the case, the witness Henderson was called to testify to the title of his own property, and his interest was not balanced. Judge Rogers, in Gibbs v. Bartlett, 2 Watts & Serg. 34, remarks,. The judgment de retorno habendo is not intended for the benefit of the defendant, but (if the lplaintiff in the Replctin

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