Dissenting opinion by
McFaklaND, J.I do not concur in the opinion announced by Judge Freeman. The warrant was regular upon its face, and does not disclose any want of jurisdiction. The officer was bound to obey it, and the defendant to submit to have his property taken. It does not appear that any trial was had, or that the cause was dismissed for want of jurisdiction, but simply that the plaintiff dismissed his suit and assumed the costs. The plaintiff having stated. in his affidavit that the property was worth $800, might be estopped to assert that the justice had jurisdiction. But upon the dismissal by the plaintiff, it then became a question whether the justice had jurisdiction to render a judgment for the defendant, and the defendant would not *440be precluded by the statement in the affidavit of the plaintiff. And if he had shown by proof that the property did not exceed $250 in value, the justice would certainly have had jurisdiction to render the usual judgment in his favor.
But I go farther. The justice had no jurisdiction to try the right to the property, which is the question involved in replevin, if it exceed $250 in value. But he has not tried this question, nor attempted to do so. The plaintiff confesses that he has improperly obtained possession of the property under the writ, and dismissed his suit. This settles the question that the property ought to be restored to the defendant. But it is said the justice cannot order this done, because. he has not jurisdiction to try the cause. What question is it necessary for the justice to determine judicially in order to render the judgment for the defendant in this case? Simply the number of pounds of cotton, and its value. This would be the only question before him. It requires no more legal attainments to settle the value of 1,000 pounds than 100. Besides, in rendering judgment for the defendant, the justice is not limited to the amount of $250. By the express words of the statute, he may render judgment for double the value of the property, which may be $250, making the judgment $500. In rendering this judgment when the plaintiff dismisses his suit, the justice settles no question — tries nothing; he simply orders, what the law itself settles as an inevitable consequence of the dismissal of the suit, that the property should be returned to the defendant, and he *441enforces this order by giving judgment for a penalty which the statute prescribes — that is, double the value of the property — and this is all the justice determines; and we have seen that in such cases he is not confined to the value of the property.
The contrary holding allows an insolvent plaintiff, by the aid of judicial process, regular on its face, to obtain another’s property, dismiss his suit, and retain the property and place it beyond the defendant’s reach; leave him to an expensive and circuitous remedy by another action. And, upon the theory of the majority opinion, the bond might be held void, upon the ground that the magistrate had no jurisdiction to take it. I think the justice, although without jurisdiction to try the merits of the cause, could yet put the parties where he found them. This, if not the letter of the law, seems to me to. be the spirit.
In this Judge NicholsoN concurs.