ditioned that he will diligently prosecute the action, return to the defendant the thing taken if the court so orders, and pay all damages for the wrongful taking and detention of the chattel seized. The bond is a prerequisite to the right to replevy.87 Each of these conditions usually required in a replevin bond is independent and the bond may be forfeited by the breach of any one. 88 But such a bond is not a substitute for the property.89 If the defendant in the replevin suit prevails, the judgment is entered ordinarily that the plaintiff shall return the property to the defendant, and the defendant's damage, resulting from the plaintiff's wrongful act, is assessed. The damages intended by the bond to be recompensed are those recovered against the original plaintiff in the replevin suit.90 By dismissing the replevin action without prejudice, on his own motion, the plaintiff cannot deprive the defendant of the right · to have the damages assessed.91 However, the defendant is not prevented from recovering on the plaintiff's bond because he failed to have the damages assessed in the replevin action,92 though if the dismissal is on the defendant's motion, it seems he must procure a judgment for damages for the detention of his property as a condition to action on the bond.98 If the

87 See New York Civil Practice Act, Sections 1095 and 1099; D. C. Code Sec. 1552.

88

but this is a case in

which the bond was taken pursuant to Stat. 11 G. 2, c. 19, s. 23 (as all others ought now to be) and conditioned not merely for making such return, if it should be adjudged, but also for prosecuting the suit with effect; and the condition of the bond is broken and the bond forfeited, as well by not prosecuting the suit with effect, as by a default of making a return of the distress on such return being adjudged, each part of the condition being independent of the other, and the bond forfeited by a failure in either." Perreau, Executrix v. Bevan (1826) 5 Barnewall & Cresswell 284, 300, 11 E. C. L. 464, 471.

89 Hagan v. Lucas (1836) 10 Pet. 400, 9 L. Ed. 470.

90 Stevens v. Tuite et al. (1870) 104 Mass. 328; Wandelohr et al. v. Grayson County National Bank et al. (1908) 102 Texas 20, 108 S. W. 1154; Sedgwick on Damages (1912, 9th Ed.) Sec. 689-a.

91 McVey v. Burns (1875) 14 Kan. 291; Thomas et al. v. First National Bank of Tecumseh (1912) 32 Okla. 115, 121 Pac. 272, Ann. Cases 1914-A, 376.

92 Sweeney et al. V. Lomme (1874) 22 Wall. 208, 22 L. Ed. 727; Manning et al. v. Manning (1881) 26 Kan. 98.

98The reason for the distinction is that the plaintiff might dismiss his action when the defendant was not present or did not know it. But when the defendant himself

action is upon the bond, the plaintiff is estopped to set up mere irregularities therein as a defense.94

§ 300. Breach of plaintiff's bond. It constitutes a breach of the bond as ordinarily given by the plaintiff, if he voluntarily dismisses his replevin action without prejudice, or if judgment is for the defendant,95 even though it be a consent judgment,96 or if it be dismissed by the court for want of jurisdiction.97 The same is true if the replevin action is prematurely commenced, though such fact is admissible in mitigation of damages in an action on the bond.98

If the bond undertakes that plaintiff "shall prosecute said action with effect," the condition is broken unless plaintiff is successful.99

§ 301. Damages recoverable on replevin bonds. The general rule is that if judgment in the replevin suit is for the defendant, he may recover the interest on the value of the property while wrongfully detained, unless it has a usable value, in which case the loss to the owner during its detention is re

makes the motion to dismiss it, it is incumbent upon him, if he wishes to preserve his right of action on the bond, to have the proper judgment entered, and he cannot complain of an order which he himself procurred." Howard v. Wyatt et al. (1911) 145 Ky. 424, 140 S. W. 655, 656.

94 Douglass v. Unmack (1904) 77 Conn. 181, 58 Atl. 710, 107 A. S. R. 25; Leeper, Graves & Co. et al. v. First National Bank of Hobart (1910) 26 Okla. 707, 110 Pac. 655, Ann. Cases 1912-B, 302, 29 L. R. A. (N. S.) 747.

95 McKey et al. v. Lauflin (1892) 48 Kan. 581, 30 Pac. 16. See Wise

man et al. v. Lynn (1872) 39 Ind. 250.

96 Estey V. Harmon (1879) 40

Mich. 645.

97 Fahnestock V. Gilham et al. (1875) 77 Ill. 637; Biddinger et al. v. Pratt (1893) 50 Oh. St. 719, 35 N. E. 795; Pierce v. King (1884) 14 R. I. 611; Seaboard Air Line Ry. Co. v. Hewlett et al. (1913) 94 S. C. 478, 78 S. E. 329. But compare Caffrey v. Dudgeon et al. (1872) 38 Ind. 512, 10 Am. Rep. 126.

98 Davis v. Harding et al. (1862) 3 Allen (Mass.) 302.

99 Boom v. St. Paul Foundry & Mfg. Co. (1885) 33 Minn. 253, 22 N. W. 538.

coverable.100 The value of the property at the time of trial, and not when taken, seems to be the basis for calculation.1 The amount of damages recoverable on the replevin bond is dependent upon the right of the defendant, as adjudged in the replevin action, to the property. However, he may recover nominal damages on the bond for breach of condition of the plaintiff to prosecute the action, although the defendant had no title to the replevied property.8

If the plaintiff is unsuccessful, the defendant is not usually entitled to recover on the bond expenses in defending, or for attorney fees, as in the case of attachment, for the undertaking is different. The plaintiff must pay the costs in such event, and must compensate the defendant for injuries, but is not liable for damages of a general nature.1

It is not usually a prerequisite to recovery on the bond that there be judgment in the replevin suit for damages or for a return of the property. But if there is a finding of the value of the goods taken or the title thereto in the trial of the replevin suit, it is conclusive upon the sureties in an action on the bond."

100 Yandle v. Kingsbury (1876) 17 Kan. 195, 22 Am. Rep. 282; Thomas et al. v. First National Bank of Tecumseh (1912) 32 Okla. 115, 121 Pac. 272, Ann. Cases 1914 A, 376; Armstrong et al. v. City of Philadelphia (1915) 249 Pa. St. 39, 94 Atl. 455, Ann. Cases 1917-B, 1082.

1 Gray et al. v. Robinson (1893) 4 Ariz. 24, 33 Pac. 712.

2 Little v. Bliss (1895) 55 Kan. 94, 39 Pac. 1025.

3 Smith v. Whiting et al. (1868) 100 Mass. 122.

4 Lake v. Hargis (1910) 82 Kan. 711, 109 Pac. 670, 30 L. R. A. (N. S.) 366, 371; Kentucky Land & Immigration Co. et al. v. Crabtree (1904) 118 Ky. 395, 80 S. W. 1161, 4 Ann. Cases 1133; Maguire v. Pan-American Amusement Co. et al. (1910) 205 Mass. 64, 91 N. E. 135, 137 A. 8. R. 422, 18 Ann.

Cases 110; Sedgwick on Damages (1912, 9th Ed.) Sec. 689-a.

As to attorney fees, see contra, Richardson et al. v. Gilbert for Use of Siegel, Cooper & Co. (1907) 135 Ill. App. 363, 366.

5 Elliott v. Black et al. (1870) 45 Mo. 372.

But this is not true if the condition of the bond be that the plaintiff will "prosecute his suit to judgment, and shall return the property, if a return thereof be adjudged by the court." Clark v. Norton et al. (1861) 6 Minn. Rep. 412.

6 Washington Ice Co. et al. v. Webster (1888) 125 U. S. 426, 8 Sup. Ct. 947, 31 L. Ed. 799; Cantril v. Babcock et al. (1888) 11 Colo. 143, 17 Pac. 296; Smith et al. V. Lisher (1864) 23 Ind. 500; Smith et al. v. Mosby et al. (1884) 98 Ind. 445.

§ 302. Obligor's liability where return of property is impossible. If it becomes impossible for the plaintiff to return the property to the defendant because it has been taken by due process of law in the meantime, the sureties on the plaintiff's bond are relieved from liability."

While the officer usually delivers the thing replevied to the plaintiff, it remains, in a sense, in the custody of the law. If the action is instituted in good faith, and the thing is destroyed by an act of God, though it is found the plaintiff was not entitled to it, the sureties' liability on the plaintiff's bond has not been viewed the same by all courts. If the language of the bond is without qualification that the property shall be returned, it would seem that the common rule of absolute liability should be applied, and the sureties required to pay damages.

"If after the undertaking in replevin is given, the property is again taken by due process of law, and held or sold, and thereby a return is rendered impossible, this fact would discharge the obligation of the sureties to return the property.

We adopt this view, and say: That according to every principle of law and practice, if the sureties in the undertaking in replevin are compelled to pay the value of the property, they are entitled to the property itself. But it is conceded that they cannot get the property, that having been taken from them and sold by virtue of subsequent executions, and if a judgment should be rendered against them for the value of the property, they would be compelled to pay for what they never enjoyed, and this without any fault or neglect on their part, and purely by operation of law over which they had no control." Caldwell et al. v. Gans et al. (1872) 1

Mont. 570, 578, 580. Accord: Hagan v. Lucas (1836) 10 Pet. 400, 9 L. Ed. 470. See Badlam, Executor v. Tucker et al. (1823) 1 Pick. (Mass.) 283, 287, 11 Am. Dec. 202. 8 DeThomas v. Witherby (1882) 61 Cal. 92, 44 Am. Rep. 542; Suppiger et al. v. Grauz (1891) 137 Ill. 216, 27 N. E. 22.

Mr. Justice Lurton, while a Circuit Judge, in the opinion in Three States Lumber Co. v. Blanks (1904) 133 Fed. 479, 66 C. C. A. 353, 69 L. R. A. 283, 290, said: "Nor is such a plaintiff a mere custodian, responsible only for negligence. As we have seen, replevin is a redelivery to the owner of goods wrongfully taken or detained. If in fact he is not the owner, his claim was groundless, and he must restore that wrongfully taken, and will not be heard to say that he held at the risk of the true owner, and was liable only for negligence as a receiver or other bailee."'

ر

However, there is authority that the sureties are not liable if the property is destroyed in the plaintiff's hands by an act of God."

It seems the rule applicable in any jurisdiction would not be different if the property is destroyed after judgment for the defendant and prior to its return.10

§ 303. Redelivery bonds in replevin actions. It is frequently provided by statute that the defendant may retain possession of the property in controversy by giving a bond to abide the judgment of the court. The recital therein that the defendant has the property in his possession, the sureties are estopped to deny.12 Such a redelivery bond is a substitute for the personalty and stands as security for the payment of its value only in those cases where, on final judgment, delivery cannot be made. If the defendant sells the thing replevied, for which he gave a bond to redeliver, the vendee gets no better title than the defendant had, since the sale is subject to the determination of the replevin action.13

If the plaintiff prevails in the replevin action, the accidental destruction of the property held by the defendant under the forthcoming bond is no defense to the obligors.14

§ 304. Injunction bonds. Ordinarily statutes will be found making it mandatory that a bond be executed by the complainant as a condition to the granting of a restraining order or a preliminary injunction.15 In the absence of legislation, a court has the inherent power to require the execution of a bond, and, in the exercise of its discretion, to impose such terms and con

9 Walker v. Osgood et al. (1866) 53 Me. 422; Sedgwick on Damages (1912, 9th Ed.) Sec. 691. See notes and cases cited in 69 L. R. A. 283-286.

10 Ewald et al. v. Boyd (1909) 24 S. Dak. 16, 123 N. W. 66, 24 L. R. A. (N. S.) 739.

11 Scanlan v. LaCoste (1915) 59 Colo. 449, 149 Pac. 835, L. R. A. 1915F, 664, Ann. Cases 1917 A, 254; Larson et al. v. Hanson et al. (1913) 26 N. Dak. 406, 144 N. W. 681, 51 L. R. A. (N. S.) 655.

12 First State Bank v. Martin et al. (1910) 81 Kan. 794, 106 Pac. 1056.

18 O'Brien v. Curry et al. (1910) 111 Minn. 533, 127 N. W. 411, 137 A. S. R. 563.

14 Hinkson v. Morrison (1877) 47 Ia. 167, 170; Hazlett v. Witherspoon et al. (1899) Miss. 25 So. 150. See comment on statutory redelivery bonds in (1908) 22 Harvard Law Review 63-64.

15 James et al. v. Withers (1894) 114 N. C. 474, 19 S. E. 367, 370.