delivered the opinion of the court,
This was an action of replevin brought by Samuel Elias, the plaintiff below, for the recovery of the value of certain goods dis-trained, for rent in arrear, by Andrew Cassidy, the defendant, as bailiff of Charles G. Scholl, the landlord of the plaintiff. The narr. charges that the plaintiff did, and still does, detain the goods against gages, &c., as it is technically denominated, in the detinet. The defendant made cognisance, and the plaintiff, in answer, plead that the goods seized were not distrainable, and that there was no rent in arrear.
On this kind of pleading the parties went to trial, and the *437plaintiff asked the court to charge, “ that the defendant, having given bond and retained the property mentioned in the writ of replevin, he cannot set up a defence that he retained the property for rent in arrears.” This point was affirmed by the court. Of this, inter alia, the defendant complains.
There is no doubt, as the declaration is in the detinet, the cognisance was bad and must so have been pronounced on demurrer: Baird v. Porter, 17 P. F. Smith 105.
The action of replevin, in Pennsylvania, so far as regards goods distrained for rent, is but the common-law form of that action somewhat modified hy statute and practice; in its essential features, however, it continues the same. This writ formerly obtained only in one instance, that of a wrongful distress. It was'intended to effect a re-delivery of the pledge, or thing distrained, to the owner, upon his giving security to prosecute his suit and to return the distress should the right be determined against him. On the giving of such securities, the sheriff was bound to restore the' chattels to the tenant, unless the distrainor claimed property in them, and, in that event, the plaintiff in the replevin was compelled to sue out his writ de proprietate probanda, and the right of property was then disposed of by an inquest summoned, for that purpose, hy the sheriff. If, however, the distrained goods had been secreted or earned out of the county, before this writ could be served, the tenant might have a capias in withernam, by which a reciprocal distress was made on goods of the distrainor, by way of reprisal and as a punishment for his illegal behavior. Finally,-if on trial of the replevin, the distress was found to be lawful,- the' defendant had judgment that the distrained goods be returned to him [de retorno habendo), and he was then entitled to hold them until the rent was paid.
From this we learn, that the chattels distrained were regarded only as a pledge for the payment of the rent due; that- the question in trial was not the right of property, but the right of possession only; that during the trial the possession, necessarily, was in the plaintiff, and that that possession passed to the distrainor only after judgment in his favor. <
It is thus manifest, from the character and nature of the action of replevin for a distress for rent, that there can properly be no such thing as an avowery or cognisance whilst the goods are in the defendant’s possession. If he claims the possession as owner, that claim is inconsistent with the allegation that the property was seized as a pledge for rent in arrear; for this is a confession that the goods are owned by the tenant; if, on the other hand, he defends on his right to distrain, he can have no standing unless he has surrendered the property in obedience to the command of the writ.
Clearly, then, the cognisance in this case could not have borne *438the test of a demurrer. It is urged that this defect in pleading is cured by the defendant’s plea, improperly called a replication, traversing the facts, set forth in the cognisance, that the goods were distrainable, and that there was rent in arrear. This would be so were the defect merely formal; not so, however, where the defect,. as in this case, is material. The rule is, that, the judges are bound before in any case they give judgment, to examine the whole record and then to adjudge the case as on the whole it may appear, without regard to the issue of law or fact that may have been raised and decided between the parties, and this, it is said, because the pleader, from misapprehension, may have passed by a material question of law without talcing issue upon it: Stephen on Plead. 119-120.
Had, then, the verdict been for the defendant, we would have been obliged, on inspection of the record, to reverse, because the pleadings show him to be in the possession of property to which he has no right, and, on strict common-law rule, judgment would have, to be entered for the plaintiff non obstante veredicto. As it is, the judgment of the court below is right, though regularly it should have been readied through a demurrer.
The remaining assignments require but little consideration. The appraisement made for the plaintiff under the Exemption Act was not evidence of the value of the goods; it was foreign to the, case trying, it was but the opinion of the appraisers, and if this was of value to the defendant, he might have produced them as witnesses on the trial. Neither was the price the defendant obtained for the goods, at private sale, admissible to fix the value of the property in suit, for this was ex parte, and the inquiry must remain whether that price was or was not the fair market value, so that such evidence would settle nothing. That the judgment was in excess of the value of the goods, as set forth in the writ and narr., comes to nothing, for this is a purely technical defect, and might have been cured by amendment, and may, therefore, now be treated as amended.
Judgment affirmed.