#### TIMOTHY D. MORRIS, Plaintiff in Error, *vs.*ADDISON BAKER, JOEL B. HUNT and JOSEPH HEATH, Defendants in Error.

ERROR TO RACINE CIRCUIT COURT.

In replevin the officer is authorized to seize the property and hold it a reasonable time for the' plaintiff to give the bond required by the statute.

If the plaintiff neglect or refuse to give the replevin bond required by the statute, the officer should redeliver the property'to the person from whose possession it was taken.

Where the officer seized the property by virtue of a writ of replevin, and continued to hold the same in his possession, notwithstanding the plaintiff had not given the bond required, the writ was quashed, and judgment of discontinuance and return, and for damages, was properly awarded.

Damages may be assessed in open court by a jmy, as well as by a writ of inquiry directed to the sheriff.

Where properly was taken upon a.writ of replevin and held for a long time, the plaintiff neglecting to give the requisite bond, the rule of damages upon a return of the property in pursuance of that part of. the judgment, is: 1. Interest for the time the property was detained upon the value thereof. 2. The amount of any deterioration in value on account of any act done to it by the plaintiff., 3. The expense of replacing the property in the position it was when taken.

Where an -action of replevin was commenced against three defendants, all served with process, and two of them appeared and pleaded, and the other moved to quash the writ for irregularity, which motion was sustained; Held, that this operated as a dismissal or discontinuance of the suit against all of the defendants

The officer, by virtue of a writ of replevin, cannot seize and, without bond, hold the property until the suit is tried and determined, but if the property is taken and the bond is not given within a reasonable time, the suit will be dismissed. In such case, the officer, after waiting a reasonable time, and the bond is not given, should reton the property.

This was an action of replevin brought by tbe plaintiff in error, as late sheriff of Racine county, against the defendants in error. The writ was issued on the 23d day of February, and made returnable the third Monday-of March, 1855. On the 29th day of February, James 0. Bartlett, sheriff of said county, returned the writ with his written return thereto attached, to the *390effect that be bad executed tbe command thereof by taking into bis custody a part of tbe property described in tbe writ; that be bad been unable to find all of tbe property described therein, but all that be bad been able to find he bad replevied and taken into his possession under and by virtue of said writ; that on tbe 9th of March, 1855, be bad personally summoned Joel B. Hunt and Joseph Heath, and on the 28th day of March, 1855, be personally summoned Addison Baker, by delivering'to each of tbe defendants a copy of tbe writ, &c.; that tbe plaintiff bad not delivered to him any bond, for the reason that tbe plaintiff was absent from home and bad been gone for and during several weeks then last past. Tbe writ and return were filed in tbe clerk’s office on the 29th March, 1855, and on tbe same day tbe plaintiff, by Strong and Fuller, bis attorneys, filed bis declaration in tbe usual form, and served a copy thereof on each of the defendants.

On tbe 30th of March) tbe defendants Hunt and Heath pleaded tbe general issue, and gave notice • that Hunt was in possession, of tbe goods and bad a subsisting interest therein..

On tbe 12th of April, 1855, at the April term, tbe defendant Baker, by bis attorneys, filed a motion to quash tbe writ, and to dismiss tbe writ and all proceedings taken in tbe cause, on tbe ground of irregularity, for tbe reason that no bond bad been given or returned with tbe writ as provided by chapter 119 of tbe Revised Statutes; and also for other relief, with costs: which motion was accompanied with, and founded upon an affidavit of tbe said Baker (and tbe papers on file), stating tbe personal service of tbe writ; that tbe property bad been replevied from tbe defendants, and was then held by tbe sheriff; that no bond bad been returned with tbe writ or -executed in tbe cause, and that be was wholly without security for the return of tbe property, or'for tbe damages be should suffer; that tbe property was owned by Baker) who was justly entitled to tbe possession of tbe same at tbe time it was replevied, deriving bis title by virtue of two chattel mortgages; that tbe property was furniture and furnishings for tbe'“ Baker House,” in the city of Racine; and that tbe same was in said bouse from September, 185é, until tbe same was wrongfully taken therefrom in February or *391March last; that said property was taken by James 0. Bartlett, sheriff, who pretended to act by virtue of said writ of replevin, and removed by him to a certain store in said city, where the same now remains under the custody of said Bartlett or Timothy Morris, plaintiff in this suit; that'the property was worth about $4,000; that said Baker purchased said mortgages on said property and took possession of the property for the purpose of keeping the same in said “ Baker House,” of which he was the owner, as furniture for the same; and that by reason of said wrongful' acts the house has been closed and its business destroyed.

The motion came on to be heard on the 16th day of April, 1855, when the plaintiff read his return to the writ and an affidavit as follows: '

*“*Timothy D.. Morris, being duly sworn, says that he is the plaintiff in said cause ; that on or about -the 81st day of October, A. D.. 1854,. he'.as sheriff of said county, in the discharge of his duty as such sheriff,' and executing certain writs of attachments, seized the property named in said writ of replevin ; that said Baker'went into possession of said property as the bailee of this deponent and promised to deliver the same to him on demand; and that he, this deponent, is solvent and is worth the sum of $3,000, over and above debts and demands against him. '

After the argument, and before the decision of the motion, the plaintiff presented in open court, and offered to file- a replevin bond in the 'cause, conditioned, executed, verified and in the penal sum as required by the statute, which offer was rejected by the court, and the plaintiff excepted.

On the 24th of April, the court decided the. motion, and ordered judgment of discontinuance against the plaintiff, of return of the property and damages for detention, and ordered a writ of inquiry, &c.

Afterwards, at the October term, 1855, the damages were assessed in open court by a jury.

After the evidence was submitted, the court instructed the jury that on the assessment the rule of damages should be *“*1. Interest on the value of' the property taken for the time it was held. 2. Any depreciation in the value of the'property, for *392any injury done to it by tbe plaintiff. 3. The expenses of replacing tbe furniture in its former position, and fitting it for use. No damages can be allowed for breaking up business, or any injury to the reputation óf tbe bouse as a hotel, and no exemplary damages can be allowed, but only actual damages according to tbe propositions above stated.” Both parties excepted to tbe ruling of tbe court; tbe plaintiff contending that the defendant was not entitled to any damages, and tbe defendant claiming damages for interruption of business, loss of custom and profits, &c., &c.

Tbe jury returned a verdict for $80.91, upon which judgment was rendered, to reverse which tbe plaintiff sued out his writ of error.

*S. T. Fuller,*for the plaintiff in error.

*J. W. Carey*and *Ira 0.*Paine, for tbe defendant in error.

*By the*Court,

Cole J.

Although our replevin act *(chap.*119, *B. S.),*does not expressly provide that no action of replevin shall be prosecuted unless a bond is given by the plaintiff in pursuance of section 8; yet we are satisfied by tbe strongest implication, that such is tbe intention of tbe act. In- the form of the writ prescribed by section 7, the officer is commanded, *'if the plaintiff gives security as required by law, to prosecute his complaint and return the goods and*chattels, *if return thereof shall be*adjudged, and to pay all sums of money recovered against him— to cause tbe goods and chattels to be replevied, and delivered to said plaintiff, and then to summon, &c. By section 8, after tbe sheriff has taken tbe property, tbe plaintiff is required to give a bond as therein specified ; when this has been done, tbe officer, Upon receipt of tbe. bond, is authorized to deliver possession of tbe property to tbe plaintiff, or to bis authorized agent. *Section*9. Tbe obvious intent and object of these provisions are to insure to tbe person who contests tbe plaintiff’s claim, and out of *393whose possession the property is taken, all reasonable security for the proper prosecution of the suit, and for the return of the property, if it shall be so adjudged, or the value thereof, and damages for its caption and detention. The bond is a substitute for the pledges at common law: *plegii de prosequendo,*and *plegii de retorno habendo. Bac. Abr. Replevin D.*The officer is undoubtedly authorized to seize the property described in the writ for the purpose of securing it, and to hold it a reasonoble time for the plaintiff to prepare his bond. But if the plaintiff neglects or refuses to give the bond required, the officer should redeliver the property to the person from whose- possession he replevied it. To permit the officer, in default of such bond being given, to retain possession of the property until the litigation is terminated, would, in most cases, be productive of the most flagrant injustice. Suppose the plaintiff is entirely irresponsible, and is defeated in the action, who will compensate the the defendant forthe loss he has sustained in consequence of being deprived of the use of the property in the meantime; or perhaps for its unavoidable depreciation in being stored away, or shut up by the officer ? Suppose the property to be cattle, horses, or sométhing of the kind, which require constant care, and may be a source of constant expense; is the officer to take care of such property, feed it for nothing ? or, in the case supposed, of the irresponsibility of the plaintiff, must the defendant, in addition -to all -other damages sustained by him, pay these charges likewise ? We think these observations are sufficient to show that the construction given this statute by the counsel for the plaintiff in error, is unsound, and ought not to be adopted. We cannot' believe that the giving' the bond to the sheriff is a condition precedent merely to the delivering of the propert}r to the plaintiff; and that where the bond is not given, the property is to remain in the custody of the.officer until the suit is terminated.

The writ in this cause was issued on the 23d of February and made returnable on .the third Monday in April, 1855. On the 29th of March, the sheriff returned the writ, with his return indorsed thereon, to the effect that he had executed the *394samé, bj fairing into bis custody part of tbe property named in tbe writ, summoning tbe defendants in tbe action, and that tbe plaintiff bald not delivered to bim a bond on account of being absent: Tbe same day, declaration was filed, and a copy served upon tbe defendants. On the "30th, tbe defendants Hunt and Heatb pleaded tbe general issue, with notice of special matter.

On tbe 12tb of April, tbe defendant Baker moved to quash tbe writ and dismiss tbe suit and all proceedings therein, for tbe reason that no bond bad been given. After bearing tbe motion, and before tbe decision thereof, the plaintiff presented in open court, a bond, and asked leave to file it, but tbe court refused to grant leave, and ordered that a judgment of discontinuance be entered in tbe cause against tbe plaintiff; that tbe property be returned to tbe defendants; that they recover their damages, sustained by reason of tbe detention thereof; and that a writ of inquiry issue to assess tbe same.

' It is insisted, that tbe court erred in giving judgment of discontinuance, generally, upon tbe motion, since tbe defendants Heatb and Hunt bad pleaded to tbe action. ■ We are.of tbe opinion, however, that tbe court decided properly. We have already stated, that it was an essential pre-requisite to the prosecution of tbe. action, that tbe plaintiff prepare bis bond within a reasonable time after the officer bad seized and taken into bis possession, tbe property. We are now considering a case, where tbe property mentioned in tbe writ has been replevied by tbe officer. Sections 12 and 28, make provision for tbe trial of tbe cause, where the property has not been replevied and delivered to *the*plaintiff. That is not this case. ■ Here, tbe property was replev-ied, and tbe plaintiff, neglected to give tbe requisite bond until a motion bad been filed and argued, to discontinue upon that ground. . Two of tbe defendants bad pleaded, thus indicating a willingness, perhaps, to waive, as far as they were concerned, tbe irregularity of tbe plaintiff in not filing bis bond. But they could not, by pleading, conclude their co-defendant of bis right to take advantage of it. Tbe objection taken, went to the-writ and- very foundation of the-’ action. - That being tbe case, it' is difficult to comprehend bow tbe writ could be quashed and- tbe suit *395dismissed, as to one defendant, and still proceed as to the' other .defendants.- What would be the effect of the judgment of discontinuance upon the property ? The action of replevin is a proceeding partly *in rem. Sharpe vs.*Whittenhall, 3 *Hill,*576. The object, purpose and effect of the writ are to take property from the possession of the defendant, and transfer it to the plaintiff, until the contest about the title is settled. So, ordinarily, where judgment of discontinuance is entered, the property, as in this case, is returned to the defendant: But if this motion1 had not been granted generally, wfiat would have become of the property'replevied Rom the defendants? Would it have, remained in the possession of the plaintiff or the officer, until the suit, as to Hunt and Heath, was terminated? If so, the. situation of the plaintiff Tvould be improved, perhaps, from the discontinuance of the suit, as. to Baker. Under the circumstances, and from the necessity of the caite, we think, that when the suit was discontinued as to one defendant, it had to be as to all.

' The counsel for the plaintiff in error has taken exceptions to the ruling of the Circuit Court, upon the execution of the writ of inquiry in open court, 'as to the'measure of damages. We are of the opinion that the rule laid down by the Circuit Court was quite as favorable for the plaintiff in error ás the facts of the case would warrant, and that he has no just ground of complaint. He insists that the defendants were not entitled to any damages, but only costs, because,- although the property had been replevied, it had -not been .delivered to the. plaintiff, and relies upon section 39, to sustain this position. That provision does not apply to.this case, since the property was replevied from the possession of the defendants, and removed from the hotel. The defendants were deprived' of the use of it for some weeks. And.it was perfectly right and proper that they should be paid for this use by receiving interest upon its value while it was thus out of their possession, as well -as damages for the depreciation .of the property, or injury done it by the plaintiff, and the necessary expense of placing the furniture, in its former position, fitted for use. • .

The- counsel for the defendants in error has questioned the *396soundness of this rule adopted by the Circuit Court, but as we do not understand him as asking for the reversal of the judgment, we do not feel called upon to enter upon a discussion of the points made by him upon this branch of the case. We have already intimated that the instructions of the Circuit Court as to the measure of damages, were quite as favorable to the plaintiff in error, as the facts of the oase would justify. *See Sedg. on Damages, chaps.*20 *and*22, *and cases there cited.*

The judgment of the Circuit' Court is affirmed.