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Argued before Lurton, Severens, and Rich No error was committed in the assessment ards, Circuit Judges.

of damages, of which the plaintiff in error Mr. W. A. Percy for plaintiff in error. can complain.

Mr. Tim E. Cooper, for defendant in Mayberry v. Cliffe, 7 Coldw. 117. error:

The judgment is in accordance with the When performance of the condition of a statute. bond becomes impossible by the act of the ob Dornan Bros. V. Benham Furniture Co. ligor, such impossibility forms no answer to 102 Tenn. 303, 52 S. W. 38. an action on the bond.

The return of the marshal is conclusive. Beswick v. Swindells, 3 Ad. & El. 883; Crane v. McCoy, 1 Bond, 422, Fed. Cas. Broom, Legal Maxims, 200; Doe ego dem.

No. 3,354. Muston v. Gladwin, 6 Q. B. 963; Keys v. Harwood, 2 C. B. 905; Walker v. Walker, 2 Lurton, Circuit Judge, delivered the De G. F. & J. 255, 29 L. J. Ch. N. S. 856; opinion of the court: Dunlap v. Clements, 18 Ala. 778; Jæger v. Many errors have been assigned, but in Stoelting, 30 Ind. 341; Swain v. Bartlett, 82 the argument those which are relied upon Mo. App. 642; Duchess of Kingston's Case, may, in substance, be reduced to two: (1) 20 How. St. Tr. 355, 2 Smith, Lead. Cas. 435. That the court erred in not instructing the a bond becomes impossible of performance by from its performance. This decision is exthe act of God or of the law, the obligors are pressly disapproved in Suppiger v. Gruaz, 137 excused, it was held in Carpenter v. Stevens, Ili. 216, 27 N. E. 22, supra. 12 Wend. 589, an action upon a replevin bond, Upon the same theory, it was held in Bobo that a plea that, before judgment de retorno v. Patton, 6 Heisk. 172, 19 Am. Rep. 593, in babendo in the replevin action, the animal re the words of the opinion : “The plaintiff in plevied died, without the act or default of the replevin who takes possession of the property plaintiff in replevin, but by the act of God, was pending the litigation, takes the possession a good plea, the legal presumption being that with a view to litigating the title. If, during it would have died had it not been taken from such possession and before the trial, by the act • the possession of the legal owners. This de of God or without the fault of the plaintia, cision was expressly disapproved ip De Thomas the property be lost or destroyed, the plaintik V. Witherby, 61 Cal. 92, 44 Am. Rep. 542, is not to be held liable for its value. supra; and in a subsequent New York case, The principle is that if a bond or obligation Suydam V. Jenkins, 3 Sandf. 643, the court possible of performance

becomes imsays in regard to it: “The decision is one of possible by the act of God, or of the law, those which we regret, but are constrained to the obligation will be saved." The court, say we cannot follow. It appears to us to be so far as appears, bases its conclusion entirely wrong in principle, and it is plainly contradict upon the principle above stated, evidently reed by many authorities. The undertaking of garding the provisions of the statutes above the plaintiff in the replevin bond, we conceive, set out subject thereto. This decision was exis absolute to return the goods, or pay their pressly disapproved in Suppiger v. Gruaz, 137 value at the time of the execution of the bond. III. 216, 27 N. E. 22, supra. We cannot think that a wrongdoer is ever to All the other Tennessee cases in which the be treated as a mere bailee, and that the prop- point under discussion arose are cases of the erty in his possession is to any extent at the replevy of attached property, especially in rerisk of the owner." The point in this last de gard to which the Code provides : $ 5275. cision was the proper measure of damages up “The death or destruction of the property, on a recovery in replevin upon election to take without any fault of the defendant, after the judgment for value.

replevy, is nó defense to the liability on such In Tennessee a statute has existed since bond." 1845-46 to the effect that, if the issue be found So, sureties in replevin bonds in cases of atfor the defendant, the judgment shall be that tachment levied are liable thereunder notwiththe goods be returned to him, or, on failure, standing the death or destruction of the prop that he recover their value, etc. Shannon's erty by act of God. Barry V. Frayser, 10 Code, $ 5144. A statutory bond is provided Heisk. 206. for, conditioned to perform the judgment of And where property attached is replevied the court in the premises. Shannon's Code, & the bond represents the debt, and stands in lieu 5131.

of the property, so that upon proof of the deThe early case of Mosely v. Baker, 2 Sneed, struction of the latter, it not appearing wheth367, is not strictly an action of replevin. One er by plaintiff's fault or not, a judgment for the claiming slaves under a bill of sale obtained in value of the property as stated in the bond equity an injunction forbidding their sale, and, is proper, without being in the alternative for upon giving a forthcoming bond, obtained pog. a return of the property. Epperson v. Van session of them to abide the decree of the Pelt, 9 Baxt. 74. The principle of Bobo v. Patcourt. The slaves died of cholera while in his ton, 6 Heisk. 172, 19 Am. Rep. 593, supra, was possession. Upon the ground that the plaintiff declared not to apply on account of the statute acted in good faith, although without sufficient above set out. legal cause, it was held that the death of the The court says, in Kuhn v. Spellacy, 3 Lea, slaves, occurring, as it did, without any want 282, a case of the replevy of attached property, of proper care upon his part, was an act of that, if a forthcoming bond be construed as a God operating to make the performance of the common-law, rather than a statutory, bond, condition of redelivery in the bond impossible, then, if the return of the property becomes imand therefore excusing the obligors therein possible by act of God, the obligors are re

jury to return no verdict for the return of 'in is regulated by statute, and the plaintiff the lumber replevied, nor for the value, nor is required to give a "bond in double the for any damages for detention. (2) That value of the property, payable to the defendthe court erred in not instructing the jury ant, and conditioned to be void if the plainthat any verdict in favor of the defendant tiff abide by and perform the judgment of must be limited to the market value of the the court in the premises.” Shannon's Code lumber replevied on the day of its seizure, (Tenn.) § 5131. By $ 5144 it is provided less a pro rata part of the award to plain that, “if the issue is found for the defendant, tiff as salvage in a certain admiralty pro or the plaintiff dismisses, or fails to proseceeding against same, to be mentioned here- cute, his suit, the judgment shall be that after.

the goods be returned to the defendant, or, That the plaintiff did not have the title, on failure, that the defendant recover their or right of possession, or any sort of special value, with interest thereon and damages for property, in the 235,000 feet of lumber seized the detention, the value of the property and under its writ of replevin was conceded, and the damages to be assessed by the jury try. the only controversy was in respect of the ing the cause.” character of the judgment in favor of de The defense against a judgment in favor fendant. In Tennessee the action of replev

of the defendant for the value of the properleased; citing Mosely v. Baker, 2 Sneed, 369, slave's emancipation. Pait v. McCutchen, 43 supra.

Tex. 291. Thus, it is apparent that in Tennessee the courts have been inclined to depart from the

II. Depreciation of the property. almost universal rule upon this question, except where held closely to it by the statute in There is no doubt as to the liability of one in the case of the repievy of attached property. | possession of property seized under writ of reThe decision in THREE STATES LUMBER Co. y. plevia, for its depreciation in value during BLANKS is in harmony with the great weight the time of its detention by him, if the action of authority, but, as recognized in the opinion is decided against him, and judgment de retorno therein, is in conflict with the trend of the

habendo is rendered. Tennessee cases which, so far, have had the “It would be anything but an act of Justice to question up.

permit a person who has wrongfully deprived

another of his goods, and retained them in his
b. Emancipation of slaves.

possession until they were nearly destroyed by
time and use, afterwards, when judgment was

rendered against him for his wrongful act, to The few cases as to the effect of the emanci

save a forfeiture of the bond by an offer to re-. pation of slaves seized in replevin, upon the ob turn the article in its depreciated condition. ligation to return them, are unanimous in hold

Nor can the sureties be placed in any better ing the obligors thereby relieved from their ob

situation than the principal." Gibbs v. Bartligation.

lett, 2 Watts & S. 34, obiter. In' Alabama, where special provision is made The real owner in an action for wrongful by statute in regard to the death of replevied taking and detention may recover the value of property, it was held not to extend to cases of

any injury the property may have sustained. the destruction of property by emancipation,

Philips v. Harriss, 3 J. J. Marsh. 122, 19 but that, under such circumstances, the con Am. Dec. 166. dition of a replevin bond to return slaves is

The rule of damages in replevin includes excused. Glover v. Taylor, 41 Ala. 124.

damages for depreciation, if any, between the So, it was held in Tennessee that the eman

time of taking and the time of the trial. Miller cipation of slaves held under a replevin bond

v. Bryden, 34 Mo. App. 602. excuses the obligors therein from the condition

Compensation for any actual injury to the to return the property ; that the emancipation property wrongfully taken is one of the ele. of slaves is not embraced in the statute pro

ments of damage assessable against the defendviding that the death or destruction of the

ant by a successful plaintiff in replevin. Aber property is no defense to liability on the bond.

V. Bratton, 60 Mich. 357, 27 N. W. 564 ; Teel Green v. Lanier, 5 Heisk. 662.

V. Miles, 51 Neb. 545, 71 N. W. 296 ; Mitchell And so, where an injunction against the sale

v. Birch, 36 Ind. 529: Brennan v. Shinkle, 89 of negroes by creditors of a husband was al

Ill. 604 ; Wadleigh v. Buckingham, 80 Wis. 230, Jowed to the wife, who claimed property in

49 N. W. 745 ; Beveridge v. Welch, 7 Wis. 465. them, and they were delivered to her to abide

Or in the action to recover possession of a decree in the cause, upon her giving a forth- personal property provided by the Code as a coming bond, the emancipation of the negroes

substitute for the action of replevin. Young was held to absolve her from her obligations

v. Willet, 8 Bosw. 486. under the bond, on the ground that the negroes

But a plaintiff in replevin, who retained were in custodia legis during the pendency of possession of the articles replevied until renthe action, and, upon the condition becoming dition of judgment, cannot claim damages for impossible by act of God, the obligation was depreciation in their value during that period. saved. Green v. Smith, 4 Coldw. 440.

Gordon v. Jenney, 16 Mass. 465. The court One in possession of a slave under a replevy says: “Any deterioration of the goods while bond under the belief that his possession is in possession of the defendant after the unrightful is not liable under the condition to lawful taking is a proper subject of damages. return in the bond when that condition becomes But after they are restored, if they should be impossible of performance by reason of the injured, decayed, or otherwise impaired in

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ty and for damages for detention was | than 250,000 feet of lumber, no separation grounded upon the following circumstances: appears to have been made, and there was

The lumber seized was upon a barge ly evidence tending to show that, although the ing at the bank of the Mississippi river. plaintiff's agent claimed possession of only The defendant had contracted to sell to the 250,000 feet, he took possession of the Chicago Mill & Lumber Company a large barge and all of the lumber thereon, and amount of lumber, and had loaded upon a made effort to separate that seized or barge belonging to that company something claimed from that not so claimed. However more than 400,000 feet when the marshal defective such a levy may be as against the executed the plaintiff's writ of replevin. defendant or a stranger, in a proceeding This writ he returned "as executed as the where such a question might be properly law directs by taking the within-described made, it is clear that, if the plaintiff obproperty out of the possession of the with. tained the actual possession of the lumber in-named H. B. Blanks, and delivering said of the defendant under his replevin writ, property to 0. H. Scoggins, agent of the whether by right or by wrong, he is, for the Three States Lumber Company, for the said purposes of the questions here to be conThree States Lumber Company.”· Although sidered, estopped to say that the writ was there was upon the barge considerably more ' wrongly issued or executed, or to contradict


value, it must be at the plaintiff's risk, if he dition as when taken. Berry v. Hoeffner, 56 prevails in the suit, however long the process

Me. 170. may continue ; because he may always convert Where a plaintiff in replevin fails to rethem into money, under such circumstances as turn some of the goods, and those which are will furnish proper evidence of their value, returned are injured, the damages, in a suit when he comes to be answerable upon his bond, on his bond, include the value of the goods or he may keep them in possession, at his not returned, and the deterioration in value election."

resulting from the injury of those returned. If the property has depreciated in the hands Franks V. Matson, 211 Ill. 338, 71 N. E. 1011. of the plaintiff, such depreciation should be A sheriff entitled to a return of property considered in fixing the damages, when the de.replevied is entitled to damages on account of fendant is successful. Mix v. Kepner, 81 Mo. its depreciation while in the hands of the 93; Rowley V. Gibbs, 14 Johns. 385.

plaintiff in replevin. Bowersock v. Adams, 59 The court recognized in Harrison v. Chap. Kan. 779, Appx. 54 Pac. 1064. pell, 84 N. C. 258, the recoverability by de

But after a redelivery of the property in. fendant of damages for deterioration.

volved in claim and delivery proceedings to the A surety on a replevin bond is liable for de defendant, he is not entitled, upon being sucpreciation caused by the wrongful conduct of

cessful in the action, to recover on plaintiff's the person replevying the property. Bradley

bond any damage to, or depreciation in the V. Reynolds, 01 Conn. 271, 23 Atl. 928.

value of, the property subsequent to that time. It is said in Capital Lumbering Co.

Katz v. IIlavac, 88 Minn, 56, 92 N. W. 506. Learned, 36 Or. 544, 78 Am. St. Rep. 792, 59

A plaintiff in replevin may recover the de. Pac. 454, that, when a return of personal proppreciation in value of a horse, caused by imerty is adjudged in an action for its recovery,

proper care and attention. Riley v. Littlefield,

84 Mich. 22, 47 N. W. 576. it is the duty of the plaintiff, if he has secured

If a horse, while detained, was injured possession thereof pending the litigation, and would escape the penalty of his undertaking, through the carelessness or neglect of the deto take active measures to redeliver it to the

fendant, the plaintiff in replevin may recover defendant within a reasonable time in the same

his expenses in taking care of and doctoring condition as when taken.

the horse, over and above what his expenses

would have been had the animal not been inA statute providing that plaintiff is to “return the said property in case such shall be

jured. He may also recover for permanent the inal judgment" was not intended to do depreciation in value of the horse, resulting

from the injury. away with the theretofore existing obligation

Zitske v. Goldberg, 38 Wis.

216. to return it in like good order and condition as when taken, and therefore, when part of the

Deterioration of a buggy, harness, and horse

between the time of taking and the day of goods were deteriorated and much depreciated

trial is one of the just and proper elements of in value, a proper allowance will be made for

damage for the detention of the property. the depreciation. Parker v. Simonds, 8 Met. Hinchey v. Koch, 42 Mo. App. 230. 205.

But in one case, Odell v. Hole, 25 Ill. 204, "If the property is damaged or deteriorated it is held that the natural depreciation in value in actual value whiie in the plaintiff's custody of a mare while in the possession of a plaintiff in any respect,

this damage or de- in replevin cannot be recovered; for any de. terioration must also be allowed in the calcu- preciation, however, caused by abuse or want of lation; otherwise it would be in the power of reasonable care, it is conceded that recovery the plaintiff, by returning the damaged or de- may be had. teriorated property, to throw upon the defend- A tender of a piano in a worse condition than ant the loss which he himself ought to sus- it was in when taken possession of under writ tain." Mayberry v. Cliffe, 7 Coldw. 117, obiter. of replevin, the depreciation being due to the

Mere restoration by the plaintiff in replevin ordinary wear and tear resulting from use, will of the goods replevied, if damaged, will not be not fulfil the requirement of the replevin bond. a compliance with the bond which requires Johnson v. Mason, 70 N. J. L. 13, 56 Atl. 1:37. them to be restored in like good order and con. The tender of an engine in a condition much

the return of the marshal. 6 Bacon Abr. may be, who had shared in the benefit of Wilson's ed. * * 59, 60.

the libelant's salvage services. This barge, while lying at the bank of the The decree of the district court in this river, sank through stress of storm, and proceeding is now relied upon as a complete about half of the lumber was submerged. defense to any demand of the defendant for The plaintiff thereupon raised the barge, a judgment for the return of the lumber and loaded the lumber upon other barges seized, or for its value, or for its detention, hired by it, and carried the lumber to although the plaintiff had no shadow of Cairo, Illinois. There the plaintiff caused title or right to the lumber taken under its the entire 400,000 feet of lumber to be

writ of replevin. The conclusiveness of that libeled in a proceeding started by itself in decree as a decree in rem is not and cannot the district court of the United States for be collaterally disputed. By that decree it the southern district of Illinois, for the pur. had rendered salvage services to the extent

is effectually determined that the plaintiff pose of enforcing against same a claim in of $1,833.29, and that the same could be enfavor of itself for salvage and towage. By forced, at its demand, against the lumber in due course of proceedings in said cause, said

question. Under the sale made in pursulumber was seized, and a salvage allowance

ance of that decree, the title and right of of $1,833.29 made in favor of the libelant, possession have effectually passed to the and said lumber was exposed and sold under purchaser. decree of said court for the sum of $2,000.

The question we must decide is whether After satisfying costs and libelant's sal. that proceeding operates as a discharge of vage claim there remained in court the sum the plaintiff's obligation to prosecute his of about $50 for the owners, whoever they suit with effect, or return the property redeteriorated from its condition when taken is is conditioned, however, upon the return of the not a compliance with a judgment requiring it property,—if an alternative judgment for the to be in as good condition as when taken. value is had, the value therein is fixed as of the Nichols & S. Co. v. Paulson, 10 N. D. 440, 87 day of taking. Schrandt V. Young, 62 Neb. N. W. 977.

254, 86 N. W. 1085. The plaintiff in replevin may recover dam An allowance of $5,000 for depreciation upon ages for depreciation in ice replevied, caused property worth $2,000 at the time of trial, in by its melting away. Findlay v. Knickerbocker the absence of any evidence to warrant it, is Ice Co. 104 Wis. 375, 80 N. W. 436.

erroneous. Crossley v. Hojer, 11 Misc. 57, 31 A plaintiff in replevin is liable for the de. N. Y. Supp. 837, Affirmed in 158 N. Y. 734, 53 preciation in value of a portion of ice replevied, N. E. 1124. which was returned in not as good order and If special damages on account of deprecia. condition as when taken. Washington Ice. Co. tion are claimed, they must be specially pleadv. Webster, 125 U. S. 426, 31 L. ed. 799, 8 Sup. ed. Whitney v. Levon, 34 Neb. 443, 51 N. W. Ct. Rep. 947.

972. Depreciation in the market value of the So, in an action to recover a mare, a plaintif property while detained will also render the

may not

recover special damage caused by one detaining it liable therefor, if unsuccess reason of the mare's having been placed in poor ful in the action.

pasturage by defendant, unless the facts are Thus, depreciation in the value of a note specially averred in the complaint. Stevenson while retained by a plaintiff in replevin is re v. Smith, 28 Cal. 102, 87 Am. Dec. 107. coverable. Fair v. Citizens' State Bank, 69 In a few instances the courts have not reKan, 353, 76 Pac. 847.

garded the damages for depreciation recoverThe plaintiff, in an action of replevin for the able in the replevin action. possession of bonds, is entitled to recover any Thus, damages for injury and depreciation depreciation of value in the bonds between the to the property while in the hands of the plaintime he became entitled to their possession tiff in replevin are properly recoverable in an and the time when he actually received them. action separate from the replevin action. Colby Clow v. Yount, 93 ni. App. 112.

v. Yates, 12 Heisk. 267. The allowance of damages for a decrease in And, according to Citizens' Nat. Bank V. the market value of cattle during the time they Oldham, 136 Mass. 515, damages for deteriora. were wrongfully detained by the defendant in tion should not be allowed in the replevin acreplevin is not error. Russell v. Smith, 14 tion. The remedy is an action upon the bond. Kan. 366.

So, damages sustained by reason of depreciaAnd deterioration in iron and in the market tion in value of the replevied property may be price thereof during the pendency of the re recovered by the defendant in replevin in a plevin action is a proper element of the dam suit on the replevin bond. Dalby v. Campbell, ages recoverable by the defendant. Boylston | 26 Ill. App. 502. Ins. Co. v. Davis, 70 N. C. 485.

But it is decided in Douglass v. Douglass, The measure of damages upon a return of 21 Wall. 98, 22 L. ed. 479, that if the defend. part of the goods in a damaged condition on ant in replevin injured the property, or culaccount of bad packing and storage is the dif. pably suffered it to become injured while It ference between the value of the property so was in his possession, the remedy is not a damaged and its value when taken. Yelton v. suit on the bond, when the bond stipulated only Slinkard, 85 Ind. 190.

for a return of the property, and nothing else But the recovery of damages for depreciation in regard to it.

M. M. M.

plevied to the defendant, or pay its value, suit do not materially depart from the comand damages for detention. Replevin is one mon law and the terms of the ancient of the most ancient and well-defined writs statutes requiring the plaintiff to give seknown to the common law. The plaintiff in curity for the return of the property if it replevin does not take or hold the goods re- shall be so adjudged, unless it be in respect plevied as a bailee or custodian, nor are the to interest upon the value, and the option goods in any sense in custodia legis. It is to the plaintiff to return or pay value. The an ancient common-law proceeding by which statute in no wise deals with the consethe owner recovers possession of his own. quence if the plaintiff is unable to return by It is defined in the old books as "a redeliv- reason of the loss or destruction of the propery to the owner, by the sheriff, of his cattle erty replevied. The Tennessee supreme court, or goods distrained upon any cause, upon in Bobo v. Patton, 6 Heisk. 172, 19 Am. Rep. surety that he will pursue the action against 593, held that the death of an animal rehim that distrained. If he pursue it not, plevied, without fault, relieved the plaintiff or if it be adjudged against him, then he who from his obligation to either return or pay took the distress shall have it again, and value. But this was put upon the ground for that purpose may have a writ of re- that, “if a bond or obligation possible of pertorno habendo.” 6 Bacon, Abr. Wilson's ed. formance at the time of execution becomes *52. By the statute of Westminster II., impossible by the act of God, or of the law, chap. 2, § 3, 13 Edw. I., the sheriff was re or of the obligee himself, the obligation will quired to take pledges from the plaintiff in be saved;" citing Comyns, Dig. Condition, an action of replevin that he would prose- D; 1 Co. Litt., and certain earlier Tennessee cute the suit and return the property re- cases, dealing with bonds made under decree plevied if the court should so direct, and by of courts of equity for the forthcoming of a later statute of the time of George II. he property committed to the custody of the was required to take a bond with sureties obligor as receiver or custodian. The deci. that he would prosecute without delay, and sion did not profess to be an interpretation for the return of the property in case its re or construction of any statute, but was put turn should be awarded. 24 Am. & Eng. upon principles of general law.

It is, Enc. Law, 2d ed. p. 529. If the goods therefore, not a decision which a court of were not restored under the writ of retorno the United States is required to follow with habendo, this was a breach of obligation to respect to the liability of a plaintiff in rereturn, and the return of elongata, or eloign- plevin whose suit was prosecuted in a court ment, by a sheriff on a writ de retorno ha- of the United States, under a bond made in bendo is conclusive in an action on the re- such court according to the requirement of plevin bond. Caldwell v. West, 21 N. J. L. the Tennessee statute. The general princi411. The plaintiff's possession of the goods ples governing courts of the United States is for himself. His pledges or sureties are in respect of state laws and state decisions substituted for the goods, and he holds sub- are so fully considered in Swift v. Tyson, 16 ject to his own disposition, free from any lien Pet. 1, 10 L. ed. 865 ; enice v. Murdock, in behalf of his sureties. 6 Bacon, Abr. *67. 92 U. S. 494, 23 L. ed. 583; Chicago v. RobHis failure to establish his title fixes his bins, 2 Black, 418, 17 L. ed. 298; and Bultistatus as a wrongdoer. Being a wrongdoer, more & O. R. Co. v. Baugh, 149 U. S. 368he is not permitted to set up even a blame- 376, 37 L. ed. 772-777, 13 Sup. Ct. Rep. 914; less loss or destruction of the defendant's and by this court in Wilson v. Perrin, 11 C. property, while wrongfully withheld from C. A. 66, 22 U. S. App. 514, 62 Fed. 629; him, as a discharge of his obligation to re- Byrne v. Kansas City, Ft. 8. & M. R. Co. 24 turn the goods or pay their value and dam- L. R. A. 693, 9 C. C. A. 666, 22 U. S. App. ages. Cobbey, Replevin, 8 - ; Shinn, Re- 220, 61 Fed. 605; Zacher v. Fidelity Trust plevin, $ 812; 24 Am. & Eng. Enc. Law, 2d & . V. Co. 45 C. C. A. 480, 106 Fed. 593 ; ed. p. 536; 6 Bacon, Abr. Wilson's ed. *67; and Elliott v. Felton, 56 C. C. A. 75, 119 Wells, Replevin, $$ 455, 601. The case of Fed. 270,—that it is unnecessary to further Whitfield v. Whitfield, 44 Miss. 254, cited consider the matter. to the contrary, is overruled by George v. The question as to what will excuse a Hewlett, 70 Miss. 2, 35 Am. St. Rep. 626, 12 plaintiff for the nonreturn of property reSo. 855. Carpenter v. Stevens, 12 Wend. 589, plevied when he fails to establish his title is also overruled by Suydam v. Jenkins, 3 is clearly a question of general law, and was Sandf. 643. . The other Mississippi cases so regarded by the Tennessee court in the cited in brief of plaintiff in error are like case cited. It is not a decision establishing wise explained away in George v. Hewlett, a rule of property, as in Warburton v. 70 Miss. 2, 35 Am. St. Rep. 626, 12 So. 855. White, 176 U. S. 484, 44 L. ed. 555, 20 Sup.

The Tennessee Code provisions prescribing Ct. Rep. 404; nor does it involve the conthe bond to be executed and the judgment to struction of a state statute, as in Byrne v. be rendered when the plaintiff fails in his' Kansas City, Ft. 8. & M. R. Co. 24 L. R. A.

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