Gladdis v. Clegg , 118 Miss. 607 ( 1918 )

Stevens,- J.,

delivered the opinion of the court.

It is conceded by counsel that the only question to be determined on this appeal is whether the sureties on a sequestration bond executed under section 565, Code of 1906 (section 325, Hemingway’s Code), are liable for the value of a certain mule, which was bonded by the defendant in this ease and which died before the final decree was rendered, without any fault of either of the parties. It was ruled in George v. Hewlett, 70 Miss. 1, 12 So. 855, 35 Am. St. Rep. 626, that in an action of replevin for property wrongfully taken or withheld, the obligors on the replevin bond executed by the defendant are liable for property destroyed by fire after the execution of the bond. But the reasoning of the court in that case was based not only upon the language of the statute, but upon “the original wrong, of the defendant in taking or withholding the property of the plaintiff,” and, as stated in the opinion, “the cases of Young v. Pickens, 45 Miss. 553, Irion v. Hume, 5 Miss. 419, and Atkinson v. Foxworth, 53 Miss. 741, stand upon totally different principles.” Our court differentiated the cases last named.

In the present case the property bonded was lawfully in the possession of the defendant at the time the bill of complaint was filed, and, as further stated by the court in George v. Hewlett, in differentiating that case from cases of attachment or execution upon property, there was in this case “no precedent wrong or trespass by which the property was taken from the owner, and the liability of the obligors rested wholly upon the contract, the performance of which” has been rendered impossible, without fault on their part, by the death of the mule.

It is contended by the complainants that the statute, which here controls, authorizes the alternate judgment for the value of the property bonded; but, as stated by our court in Irion v. Hume, supra:

“If the attachment creditor could not take judgment for the slaves as property, he could not recover for their value. ... If there was no property subject to the plaintiff’s debt, there could be rightfully no assessment of value, nor could there be judgment for the sum so determined.”

At the time the bond was executed in this case the condition of the bond was entirely possible, but when the final decree was rendered the condition of the bond had been made impossible, and that through no fault of the obligors. We think the learned chancellor reached the right result, and the decree appealed from will accordingly be affirmed.

Affirmed.