Smith v. Dillingham , 33 Me. 384 ( 1851 )

Wells, J.

— The only question raised in the argument relates to the amount of damages, which the plaintiffs are entitled to recover.

The condition of the bond required, that the plaintiffs in the original suit should prosecute the replevin to final judgment, and pay such damages and costs as the defendants in that suit should recover against them; and also to return and restore the same goods and chattels, in like good order and condition as when taken, in case such shall be the final judgment.

The statute, chap. 130, sect. 11, provides, that “ if it shall appear upon the nonsuit of the plaintiff, or upon a trial or otherwise, that the defendant is entitled to a return of the goods, he shall have judgment therefor accordingly, with damages for the taking thereof by the replevin, with his costs and a writ of return and restitution thereupon accordingly.”

The statute contemplates, that the property will be returned, when such is the judgment, and the damages are then assessed upon that expectation, and if the damages, with the interest, which the Court by statute, chap. 96, sect. 20, has power to allow on them, from the time the verdict was rendered to the time of rendering judgment on it, and the costs are paid, and the property is returned, there would be no breach of the bond. And if, in the present case, the property had been returned, the costs having been paid, and no damages recovered in the replevin suit, this action could not have been, maintained, because there would have been an entire compliance with the judgment rendered. Pettygrove v. Hoyt, 2 Fairf. 66. But the property was not returned, and there was, then a breach of the bond, and the statute does not prescribe how the damages shall be assessed in such contingency. The general rule of law would give in such case, as an indemnity, the value of the property at the time it was taken, with interest from that time to the time of trial. Such is the rule in relation to interest for the detention of money, a.nd the delay of satisfaction for the conversion of property.

Tf damages for the taking had been assessed, as the statute provides, up to the time when the nonsuit was ordered, the estimate of damages in this suit for the detention, would have been commenced at that period. But the record shows that no such assessment was made. The wrong done to the plaintiffs consists in the taking of their property, and in the delay of making compensation for it. There is nothing in the statute which precludes the allowance of interest on the value of the property from the time when it was taken.

Exceptions overruled.