Leighton v. Brown

98 Mass. 515

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1868
• Status: Published

Opinion

Foster, J.

Judgment is to be entered in favor of the plaintiff for the penalty of the bond. Gen. Sts. c. 133, §§ 9,10. But interest on the penal sum therein named from the date of the breach may be added as damages for the detention, and will form a part of the judgment for the penalty to be rendered both against principal and sureties. Bank of Brighton v. Smith, 12 Allen, 243. Execution is to be awarded for so much of the penalty as shall be ascertained to be justly due, but it can in no event exceed the judgment.

The breach assigned is the failure of the principal defendant, as plaintiff in the replevin suit, to comply with the order to return the property replevied, which was a part of the final judgment in that action. Damages for that breach must be the value of the property replevied. • In ascertaining the value of the schooner which was taken by the replevin writ and which the principal defendant now fails to restore, the leading principle is, that the party who has been deprived of his property is entitled as far as possible to complete indemnity. The appraisal made in the replevin suit is conclusive against the party by whom it was made. Parker v. Simonds, 8 Met. 205. But it is not admissible in evidence against the present plaintiff, who, as defendant in the replevin action, had no agency in procuring his valuation. Kafer v. Harlow, 5 Allen, 348. In the present ase the value was greater at the date of the final judgment ordering a return than at the date of the appraisal. The value at the date of a demand for the restoration of the property in compliance with the order of return is the measure of damages for which the plaintiff contends, and to which, in the opinion of the court, he is entitled. Swift v. Barnes, 16 Pick. 194.

The judgment for damages awarded by the referee for the detention of the property pending the replevin suit, together with the costs of that action and interest on that judgment, may also be included in the assessment of damages for a breach of the bond, if the same have not been paid. But the award is merged in the judgment upon it, and no interest can be allowed upon the award previously to the rendition of the judgment.

The assessor to be appointed will compute the damages upon the principles above stated; and if they equal or exceed the judgment, execution is to be awarded for the exact amount thereof.