Argued before Lurton, Severens, and Richards, Circuit Judges.

Mr. W. A. Percy for plaintiff in error. Mr. Tim E. Cooper, for defendant in

error:

When performance of the condition of a bond becomes impossible by the act of the obligor, such impossibility forms no answer to an action on the bond.

Beswick v. Swindells, 3 Ad. & El. 883; Broom, Legal Maxims, 200; Doe ex dem. Muston v. Gladwin, 6 Q. B. 963; Keys v. Harwood, 2 C. B. 905; Walker v. Walker, 2 De G. F. & J. 255, 29 L. J. Ch. N. S. 856; Dunlap v. Clements, 18 Ala. 778; Jæger v. Stoelting, 30 Ind. 341; Swain v. Bartlett, 82 Mo. App. 642; Duchess of Kingston's Case, 20 How. St. Tr. 355, 2 Smith, Lead. Cas. 435.

a bond becomes impossible of performance by the act of God or of the law, the obligors are excused, it was held in Carpenter v. Stevens, 12 Wend. 589, an action upon a replevin bond, that a plea that, before judgment de retorno habendo in the replevin action, the animal replevied died, without the act or default of the plaintiff in replevin, but by the act of God, was a good plea, the legal presumption being that it would have died had it not been taken from the possession of the legal owners. This decision was expressly disapproved in De Thomas v. Witherby, 61 Cal. 92, 44 Am. Rep. 542, supra; and in a subsequent New York case, Suydam v. Jenkins, 3 Sandf. 643, the court says in regard to it: "The decision is one of those which we regret, but are constrained to say we cannot follow. It appears to us to be wrong in principle, and it is plainly contradicted by many authorities. The undertaking of the plaintiff in the replevin bond, we conceive, is absolute to return the goods, or pay their value at the time of the execution of the bond. We cannot think that a wrongdoer is ever to be treated as a mere bailee, and that the property in his possession is to any extent at the risk of the owner." The point in this last decision was the proper measure of damages upon a recovery in replevin upon election to take judgment for value.

In Tennessee a statute has existed since 1845-46 to the effect that, if the issue be found for the defendant, the judgment shall be that the goods be returned to him, or, on failure, that he recover their value, etc. Shannon's Code, 5144. A statutory bond is provided for, conditioned to perform the judgment of the court in the premises. Shannon's Code, 5131.

The early case of Mosely v. Baker, 2 Sneed, 367, is not strictly an action of replevin. One claiming slaves under a bill of sale obtained in equity an injunction forbidding their sale, and, upon giving a forthcoming bond, obtained possession of them to abide the decree of the court. The slaves died of cholera while in his possession. Upon the ground that the plaintiff acted in good faith, although without sufficient legal cause, it was held that the death of the slaves, occurring, as it did, without any want of proper care upon his part, was an act of God operating to make the performance of the condition of redelivery in the bond impossible, and therefore excusing the obligors therein

Lurton, Circuit Judge, delivered the opinion of the court:

Many errors have been assigned, but in the argument those which are relied upon may, in substance, be reduced to two: (1) That the court erred in not instructing the from its performance. This decision is expressly disapproved in Suppiger v. Gruaz, 137 Ili. 216, 27 N. E. 22, supra.

Upon the same theory, it was held in Bobo v. Patton, 6 Heisk. 172, 19 Am. Rep. 593, in the words of the opinion: "The plaintiff in replevin who takes possession of the property pending the litigation, takes the possession with a view to litigating the title. If, during such possession and before the trial, by the act of God or without the fault of the plaintiff, the property be lost or destroyed, the plaintiff is not to be held liable for its value. The principle is that if a bond or obligation possible of performance becomes impossible by the act of God, or of the law, the obligation will be saved." The court, so far as appears, bases its conclusion entirely upon the principle above stated, evidently regarding the provisions of the statutes above set out subject thereto. This decision was expressly disapproved in Suppiger v. Gruaz, 137 Ill. 216, 27 N. E. 22, supra.

All the other Tennessee cases in which the point under discussion arose are cases of the replevy of attached property, especially in regard to which the Code provides: § 5275. "The death or destruction of the property, without any fault of the defendant, after the replevy, is no defense to the liability on such

bond."

So, sureties in replevin bonds in cases of attachment levied are liable thereunder notwithstanding the death or destruction of the prop erty by act of God. Barry v. Frayser, 10 Heisk. 206.

And where property attached is replevied the bond represents the debt, and stands in lieu of the property, so that upon proof of the destruction of the latter, it not appearing whether by plaintiff's fault or not, a judgment for the value of the property as stated in the bond is proper, without being in the alternative for a return of the property. Epperson v. Van Pelt, 9 Baxt. 74. The principle of Bobo v. Patton, 6 Heisk. 172, 19 Am. Rep. 593, supra, was declared not to apply on account of the statute

above set out.

The court says, in Kuhn v. Spellacy, 3 Lea, 282, a case of the replevy of attached property, that, if a forthcoming bond be construed as a common-law, rather than a statutory, bond, then, if the return of the property becomes impossible by act of God, the obligors are re

jury to return no verdict for the return of the lumber replevied, nor for the value, nor for any damages for detention. (2) That the court erred in not instructing the jury that any verdict in favor of the defendant must be limited to the market value of the lumber replevied on the day of its seizure, less a pro rata part of the award to plaintiff as salvage in a certain admiralty proceeding against same, to be mentioned hereafter.

That the plaintiff did not have the title, or right of possession, or any sort of special property, in the 235,000 feet of lumber seized under its writ of replevin was conceded, and the only controversy was in respect of the character of the judgment in favor of defendant. In Tennessee the action of replevleased; citing Mosely v. Baker, 2 Sneed, 369, supra.

Thus, it is apparent that in Tennessee the courts have been inclined to depart from the almost universal rule upon this question, except where held closely to it by the statute in the case of the repievy of attached property. The decision in THREE STATES LUMBER Co. v. BLANKS is in harmony with the great weight of authority, but, as recognized in the opinion therein, is in conflict with the trend of the Tennessee cases which, so far. have had the question up.

b. Emancipation of slaves.

The few cases as to the effect of the emancipation of slaves seized in replevin, upon the obligation to return them, are unanimous in holding the obligors thereby relieved from their obligation.

In Alabama, where special provision is made by statute in regard to the death of replevied property, it was held not to extend to cases of the destruction of property by emancipation, but that, under such circumstances, the condition of a replevin bond to return slaves is excused. Glover v. Taylor, 41 Ala. 124.

So, it was held in Tennessee that the emancipation of slaves held under a replevin bond excuses the obligors therein from the condition

to return the property; that the emancipation of slaves is not embraced in the statute providing that the death or destruction of the property is no defense to liability on the bond. Green v. Lanier, 5 Heisk. 662.

And so, where an injunction against the sale of negroes by creditors of a husband was alJowed to the wife, who claimed property in them, and they were delivered to her to abide a decree in the cause, upon her giving a forthcoming bond, the emancipation of the negroes was held to absolve her from her obligations under the bond, on the ground that the negroes were in custodia legis during the pendency of the action, and, upon the condition becoming impossible by act of God, the obligation was saved. Green v. Smith, 4 Coldw. 440.

One in possession of a slave under a replevy bond under the belief that his possession is rightful is not liable under the condition to return in the bond when that condition becomes impossible of performance by reason of the

in is regulated by statute, and the plaintiff is required to give a "bond in double the value of the property, payable to the defendant, and conditioned to be void if the plaintiff abide by and perform the judgment of the court in the premises." Shannon's Code (Tenn.) § 5131. By § 5144 it is provided that, "if the issue is found for the defendant, or the plaintiff dismisses, or fails to prosecute, his suit, the judgment shall be that the goods be returned to the defendant, or, on failure, that the defendant recover their value, with interest thereon and damages for the detention, the value of the property and the damages to be assessed by the jury trying the cause."

The defense against a judgment in favor of the defendant for the value of the properslave's emancipation. Pait v. McCutchen, 43 Tex. 291.

II. Depreciation of the property.

There is no doubt as to the liability of one in possession of property seized under writ of replevin, for its depreciation in value during the time of its detention by him, if the action is decided against him, and judgment de retorno habendo is rendered.

"It would be anything but an act of justice to permit a person who has wrongfully deprived another of his goods, and retained them in his possession until they were nearly destroyed by time and use, afterwards, when judgment was rendered against him for his wrongful act, to save a forfeiture of the bond by an offer to return the article in its depreciated condition. Nor can the sureties be placed in any better situation than the principal." Gibbs v. Bart

lett, 2 Watts & S. 34, obiter.

The real owner in an action for wrongful taking and detention may recover the value of any injury the property may have sustained. Philips v. Harriss, 3 J. J. Marsh. 122, 19

Am. Dec. 166.

The rule of damages in replevin includes damages for depreciation, if any, between the time of taking and the time of the trial. Miller v. Bryden, 34 Mo. App. 602.

Compensation for any actual injury to the property wrongfully taken is one of the elements of damage assessable against the defendant by a successful plaintiff in replevin. Aber v. Bratton, 60 Mich. 357, 27 N. W. 564; Teel v. Miles, 51 Neb. 545, 71 N. W. 296; Mitchell v. Burch, 36 Ind. 529: Brennan v. Shinkle, 89 Ill. 604; Wadleigh v. Buckingham, 80 Wis. 230, 49 N. W. 745; Beveridge v. Welch, 7 Wis. 465.

Or in the action to recover possession of personal property provided by the Code as a substitute for the action of replevin. Young v. Willet, 8 Bosw. 486.

But a plaintiff in replevin, who retained possession of the articles replevied until rendition of judgment, cannot claim damages for depreciation in their value during that period. Gordon v. Jenney, 16 Mass. 465. The court says: "Any deterioration of the goods while in possession of the defendant after the unlawful taking is a proper subject of damages. But after they are restored, if they should be injured, decayed, or otherwise impaired in

This barge, while lying at the bank of the river, sank through stress of storm, and about half of the lumber was submerged. The plaintiff thereupon raised the barge, and loaded the lumber upon other barges hired by it, and carried the lumber to Cairo, Illinois. There the plaintiff caused the entire 400,000 feet of lumber to be libeled in a proceeding started by itself in

the district court of the United States for the southern district of Illinois, for the purpose of enforcing against same a claim in favor of itself for salvage and towage. By due course of proceedings in said cause, said lumber was seized, and a salvage allowance of $1,833.29 made in favor of the libelant, and said lumber was exposed and sold under decree of said court for the sum of $2,000. After satisfying costs and libelant's salvage claim there remained in court the sum of about $50 for the owners, whoever they deteriorated from its condition when taken is not a compliance with a judgment requiring it to be in as good condition as when taken. Nichols & S. Co. v. Paulson, 10 N. D. 440, 87 N. W. 977.

The plaintiff in replevin may recover damages for depreciation in ice replevied, caused by its melting away. Findlay v. Knickerbocker Ice Co. 104 Wis. 375, 80 N. W. 436.

A plaintiff in replevin is liable for the depreciation in value of a portion of ice replevied, which was returned in not as good order and condition as when taken. Washington Ice. Co. ▼. Webster, 125 U. S. 426, 31 L. ed. 799, 8 Sup. Ct. Rep. 947.

Depreciation in the market value of the property while detained will also render the one detaining it liable therefor, if unsuccessful in the action.

Thus, depreciation in the value of a note while retained by a plaintiff in replevin is recoverable. Fair v. Citizens' State Bank, 69 Kan. 353, 76 Pac. 847.

The plaintiff. in an action of replevin for the possession of bonds, is entitled to recover any depreciation of value in the bonds between the time he became entitled to their possession and the time when he actually received them. Clow v. Yount, 93 Ill. App. 112.

The allowance of damages for a decrease in the market value of cattle during the time they were wrongfully detained by the defendant in replevin is not error. Russell v. Smith, 14 Kan. 366.

And deterioration in iron and in the market price thereof during the pendency of the replevin action is a proper element of the damages recoverable by the defendant. Boylston Ins. Co. v. Davis, 70 N. C. 485.

The measure of damages upon a return of part of the goods in a damaged condition on account of had packing and storage is the difference between the value of the property so damaged and its value when taken. Yelton v. Slinkard, 85 Ind. 190.

But the recovery of damages for depreciation

The decree of the district court in this proceeding is now relied upon as a complete defense to any demand of the defendant for a judgment for the return of the lumber seized, or for its value, or for its detention, although the plaintiff had no shadow of title or right to the lumber taken under its writ of replevin. The conclusiveness of that decree as a decree in rem is not and cannot be collaterally disputed. By that decree it had rendered salvage services to the extent is effectually determined that the plaintiff of $1,833.29, and that the same could be enforced, at its demand, against the lumber in question. Under the sale made in pursuance of that decree, the title and right of possession have effectually passed to the purchaser.

The question we must decide is whether that proceeding operates as a discharge of the plaintiff's obligation to prosecute his suit with effect, or return the property re| is conditioned, however, upon the return of the property,-if an alternative judgment for the value is had, the value therein is fixed as of the day of taking. Schrandt v. Young, 62 Neb. 254, 86 N. W. 1085.

An allowance of $5,000 for depreciation upon property worth $2,000 at the time of trial, in the absence of any evidence to warrant it, is erroneous. Crossley v. Hojer, 11 Misc. 57, 31 N. Y. Supp. 837, Affirmed in 158 N. Y. 734, 53 N. E. 1124.

If special damages on account of depreciation are claimed, they must be specially pleaded. Whitney v. Levon, 34 Neb. 443, 51 N. W. 972.

So, in an action to recover a mare, a plaintiff may not recover special damage caused by reason of the mare's having been placed in poor pasturage by defendant, unless the facts are specially averred in the complaint. Stevenson v. Smith, 28 Cal. 102, 87 Am. Dec. 107. In a few instances the courts have not regarded the damages for depreciation recoverable in the replevin action.

Thus, damages for injury and depreciation to the property while in the hands of the plaintiff in replevin are properly recoverable in an action separate from the replevin action. Colby v. Yates, 12 Heisk. 267.

And, according to Citizens' Nat. Bank v. Oldham, 136 Mass. 515, damages for deterioration should not be allowed in the replevin action. The remedy is an action upon the bond.

So, damages sustained by reason of depreciation in value of the replevied property may be recovered by the defendant in replevin in a suit on the replevin bond. Dalby v. Campbell, 26 111. App. 502.

But it is decided in Douglass v. Dougiass, 21 Wall. 98, 22 L. ed. 479, that if the defendant in replevin injured the property, or culpably suffered it to become injured while it was in his possession, the remedy is not a suit on the bond, when the bond stipulated only for a return of the property, and nothing else in regard to it. M. M. M.