in his defense to the bond, claim it as his own.52 The officer need not accept less than the whole of the goods seized; and an offer by the defendant to return a part will not mitigate the amount recoverable. If, however, less than the entire amount attached is returned and accepted, its value must be credited on the judgment against the principal obligor.58 It does not satisfy the condition of the bond that the defendant notifies the sheriff where he can find the property; for a delivery bond is satisfied only by an actual delivery of the goods originally attached, or a tender of it to the proper authority. On failure to return the entire property, the attaching creditor may sue for its value, which is the extent of the liability of the obligors on the bond.55

The destruction of the goods attached, while in the possession of the defendant, who has given a forthcoming bond, will afford him no defense; for his undertaking is to deliver upon demand.56 If, however, the redelivery is made impossible by the act of the plaintiff, the obligors of the bond will be afforded a defense.57

§ 296. Bonds to release the attachment. A second class of bonds, given only by the defendant, is for the purpose of dissolving or releasing the attachment. It accomplishes two things: (a) it releases the goods attached from the custody of the officer, as does a forthcoming bond, but unlike the forthcoming bond, it also releases the property from the attachment; (b) the bond dissolves the attachment, and is in itself a substitute for the res attached.58 By executing the release bond conditioned that the defendant will pay the plaintiff the amount of the judgment which the plaintiff may recover against him,

52 Klippel et al. v. Oppenstein (1896) 8 Colo. App. 187, 45 Pac. 224.

53 Jones v. Short et al. (1909) 53 Oregon 525, 101 Pac. 209. See Unit Construction Co. v. Foss et al. (1925) 71 Cal. App. 204, 234 Pac. 903.

54 Chapline v. Robertson (1884) 44 Ark. 202.

55 Metrovich v. Jovovich et al. (1881) 58 Cal. 341.

56 Doggett, Bassett & Hill Co. v. Black et al. (1889) 40 Fed. 439.

57 Jaeger v. Stoelting (1868) 30 Ind. 341.

58 Schultz v. Grimwood (1905) 27 R. I. 137, 60 Atl. 1065, 114 A. S. R. 33, 36. See Smith v. United States Express Co. et al. (1890) 135 Ill. 279, 25 N. E. 525.

the attachment is discharged, and it is as if no attachment had been granted. The defendant waives objection to the validity of the prior proceedings,59 and finds himself unable to recover on the bond given by the plaintiff to reimburse him for damages caused by the wrongful issuance of the attachment.60 By giving a release bond, a prior forthcoming bond becomes nugatory.

61

That the attachment was wrongfully sued out in the first place becomes immaterial after the defendant provides a release bond. Together with his sureties, the principal becomes absolutely liable on the bond thereafter, if judgment is entered against him.62 Nor does it become material that the principal was discharged by bankruptcy.68 The sureties, in the absence of fraud, collusion or mistake, are bound for the amount of the judgment against the defendant in the attachment proceedings. While statute affects the procedure, the plaintiff usually either may have execution issue on his attachment judgment, or sue the defendant and his sureties on the release bond.65

§ 297. Remedies available to defendant in attachment. The defendant in attachment proceedings, in case he is injured, has three actions available: (a) he may sue on the bond given by the plaintiff and recover according to its condition; (b) he may sue the plaintiff on the facts of the case and recover accord

59 McMillan v. Dana et al. (1861) 18 Cal. 339.

60"Appellants cannot maintain an action for damages upon the attachment bond for not prosecuting the attachment to effect when the complaint shows upon its face that they caused the attachment to be dissolved by filing their bond for the restitution of their property. If the attachment proceedings were wrongful and oppressive, and appellants desired the possession of the attached goods pending the action, they should have executed a delivery Bick et al. v. Lang bond. et al. (1896) 15 Ind. App. 503, 44

N. E. 555, 556. Accord: Rachelman v. Skinner et al. (1891) 46 Minn. 196, 48 N. W. 776.

61 Dearborn v. Richardson et al. (1871) 108 Mass. 565.

62 Moffitt et al. v. Garrett (1909) 23 Okla. 398, 100 Pac. 533, 32 L. R. A. (N. S.) 401, 138 A. S. R. 400.

63 See Tapley v. Goodsell et al. (1877) 122 Mass. 176, 182. 64 Jaynes, Executrix V. Platt (1890) 47 Oh. St. 262, 24 N. E. 262, 21 A. S. R. 810. et al. 65 Chrisman Adm'r (1875) 30 Ark. 351.

V.

Rogers,

ing to the statute, as if the plaintiff had given a bond; (c) he may sue for malicious prosecution, as at common law, and recover according to the common law, where there has been malice and want of probable cause.66

Voluntary abandonment of the attachment by the creditor, 67 or its discharge because of a defective affidavit, though good grounds for an attachment existed, and in a new suit the attachment was successfully prosecuted,68 or a judgment for the defendant,69 or a finding that the attachment was wrongfully sued out,70 or a final judgment in personam alone against the defendant,71 will make the plaintiff and his sureties liable on the attachment bond. Although there was no malice, and probable cause to attach existed, the attaching creditor and his sureties may be compelled to pay damages as agreed in the undertaking, if the attachment was wrongfully procured.72

The defendant may recover on the bond given by the plaintiff for the reasonable value of the use of the property during detention, and for its destruction, deterioration or loss while in plaintiff's hands, and for counsel fees in obtaining its release.75 Recovery may be had also for expenses incurred in bringing necessary witnesses from other states to establish the

66 Jarman v. Stewart, Gwynne & Co. (1882) 12 Fed. 266, 268; Hollingsworth v. Atkins et al. (1894) 46 La. Ann. 515, 15 So. 77, 80. 67 Steinhardt v. Leman (1889) 41 La. Ann. 835, 6 So. 665.

68 Twidwell v. Smith et al. (1910) 158 Ill. App. 142; Lobenstein v. Hymson (1891) 90 Tenn. 606, 18 S. W. 250. See Higdon v. Vaughn (1880) 58 Miss. 572.

69 Trentman et al. v. Wiley et al. (1882) 85 Ind. 33.

70 Harger v. Spofford (1877) 46 Ia. 11.

71 Sannes v. Ross et al. (1886) 105 Ind. 558, 5 N. E. 699.

72 Carothers V. McIlhenny Co. et al. (1885) 63 Texas 138.

78 Atlas Development Co. v. Na

tional Surety Co. (1923) 190 Cal. 329, 212 Pac. 196.

74 Pettit et al. v. Mercer (1847) 8 B. Mon. (Ky.) 51; Alexander v. Jacoby et al. (1872) 23 Oh. St. 358. That the market value of the property where taken is the proper measure of damages see Hurd v. Barnhart (1878) 53 Cal. 97.

75 Fidelity & Deposit Co. of Mary. land v. Bucki & Son Lumber Co. (1902) 189 U. S. 135, 23 Sup. Ct. 582, 47 L. Ed. 744; Irwin et al. v. Cotney (1926) Ala. 108 So. 235; Buckly et al. v. Van Diver (1893) 70 Miss. 622, 12 So. 905; Raymond Bros. v. Greene & Co. (1881) 12 Neb. 215, 10 N. W. 709, 41 Am. Rep. 763; Fixel v. Tallman et al. (1909) 116 N. Y. S. 639.

defense, if the attachment is discharged.76 No recovery can be had upon the bond for loss of credit.77 The statute is remedial in character, and to permit the defendant to recover on the bond for every injury he might sustain as the remote consequence of the attachment would defeat its object. However for all other injuries, such as loss of credit, an action on the case seems available to the defendant in the attachment suit.78 If the defendant sues for malicious prosecution, he can doubtless recover exemplary damages in a proper case; but whether he can recover more than actual damages if he sues on the bond is questionable, there being authority permitting and denying such recovery. Since the action is on a contract, unless punitive damages were clearly contemplated, it is doubtful whether more than compensatory damages should be allowed.79

§ 298. Replevin. At common law, replevin would lie to recover personal property in specie where it had been taken wrongfully out of the possession of the owner. No damages could be recovered for the detention.80 It differed from detinue

76 English Canning & Mfg. Co. v. Sexton & Co. et al. (1921) 222 Ill. App. 110.

77 Pollock & Co. v. Gantt (1881) 69 Ala. 373, 44 Am. Rep. 519; Elder v. Kutner et al. (1893) 97 Cal. 490, 32 Pac. 563; Seattle Crockery Co. v. Haley et al. (1893) 6 Wash. 302, 33 Pac. 650, 36 A. S. R. 156.

It is possible for the bond to be so worded as to permit the defendant to recover for all damages. See Offterdinger v. Ford et al. (1896) 92 Va. 636, 24 S. E. 246.

78 In Lawrence V. Hagerman (1870) 56 Ill. 68, 8 Am. Rep. 674, 676, the action being in tort by the defendant in the attachment action against the plaintiff for maliciously levying upon his goods and chattels, the court said: "The reputation and credit of a man in business is as much within the protection of the law as property or other valuable rights. And if it be true that the

appellant has maliciously, by his wrongful act, destroyed the business, credit, and reputation of the appellee, the law will require him to make good the loss sustained.' See Storz et al. v. Finkelstein et al. (1896) 48 Neb. 27, 66 N. W. 1020, 1022; Sterling v. Marine Bank of Crisfield (1913) 120 Md. 396, 87 Atl. 697, Ann. Cas. 1915-A, 1219; notes in 52 L. R. A. 54-56.

79 See Floyd v. Hamilton (1858) 33 Ala. 235; Fourth National Bank of Cincinnati v. Mayer (1895) 96 Ga. 728, 24 S. E. 453; International Harvester Co. of America v. Iowa Hardware Co. et al. (1909) 146 Ia. 172, 122 N. W. 951, 20 L. R. A. (N. S.) 272. See notes following report of the above case in 29 L. R. A. (N. S.) 275-282.

80 Mennie v. Blake (1856) 6 E. & B. 842, 119 Eng. Rep. Reprint 1078.

in which action the plaintiff could recover the personalty or its value; also, the original taking was lawful, but the continued possession was unlawful.81

At an early time, statutes required security to be given that the plaintiff would pursue his action, and would return the thing distrained to the defendant if judgment be against him.82 Statutes have altered the common law in most states. In some the form of action is called claim and delivery.88 Quite generally, provision is made that the plaintiff in replevin may recover either the personalty in specie or its value. Such statutes tend to blend replevin and trover, though in the former the title is treated as in the plaintiff, while in the latter it is regarded as having passed to the defendant.84 Where damages are recoverable, the action is in rem so far as it seeks to recover chattels in specie, and in personam as to the damages for their detention.85 While the owner of personalty may follow his property so long as its identity has not been changed, if the statute permits the alternative judgment for damages, as well as recovery in specie, the motive of the defendant in taking may become an important factor in ascertaining the amount of damages.86

§ 299. The plaintiff's bond. Obviously, a plaintiff should not be permitted to set in motion the machinery of the law, and wrongfully take property from the possession of its owner with impunity. The object of replevin is to permit the plaintiff to recover the personalty to which he is entitled, and not to harass others by taking from them that which does not belong to him. Possession of one's own property is a valuable right, not to be interfered with at pleasure. To prevent promiscuous replevin suits without reason, it is required that the plaintiff shall give a bond, usually for twice the value of the thing replevied, con

81 Phillips v. Jones (1850) 15 al. (1912) 21 Idaho 141, 121 Pac. Q. B. 859; Arthur v. Ingels et al. 561, 563. (1891) 34 W. Va. 639, 11 L. R. A. 557; 3 Blackstone Com. (3d Ed. Cooley) 147.

82 3 Blackstone Com. (3d Ed. Cooley) 147.

83 Bates v. Capital State Bank et

84 Sedgwick on Damages (1912, 9th Ed.) Sec. 528..

85 Fredericks V. Tracy et al. (1893) 98 Cal. 658, 33 Pac. 750. 86 The Law of Accession of Personal Property" (1922) 22 Col. Law Review 103.