69 Md. 59 | Md. | 1888
delivered the opinion of the Court.
The questions in this case arise in a suit on a replevin bond. The property replevied was a steam engine, separator and clover huller, and the judgment in replevin was for the defendant for a return of the property and costs. The property was returned and the costs of suit were paid, and the defendant in replevin now sues on the bond to recover damages in consequence of being deprived of the use of the property pending the replevin suit.
The question first to he considered is, whether the opinion of witnesses is admissible in evidence to prove the prospective profits which 'the plaintiff might have realized from the use of the engine and thresher, if the same had not been taken from his possession under the
The title to personal property may be in one and the right of possession in another. To maintain an action of replevin, the plaintiff must prove his right to the possession of the property at the time of issuing the writ, and a judgment for the defendant does not necessarily determine the title to the property. And
The conditions of the bond sued on are:
1st. That Koontz shall prosecute the writ of replevin •with effect;
2dly. That he shall return the property if the same be adjudged; and
3dly. That he shall perform and fulfil the judgment of the Court in the premises. .
These are separate and independent conditions, and for a breach of any one of these conditions the bond is liable. To prosecute with effect, means that the plaintiff shall prosecute his suit with success, that is to
Judgment reversed, without awarding a new trial.
BitYAKf, J., dissented.