аfter making the foregoing statement of the case, delivered the opinion of the court.
Many errors have been assigned, but in the argument those which
That the plaintiff did not have the title or right of possession or any sort of special property in the 235,000 feet of lumber seized under its writ of replevin was conceded, and the only controversy was in respect of the character of the judgment in favor of defendant. In Tennessee the action of replevin is regulated by statute, and the plaintiff is required to give a “bond in double the value оf the property, payable to the defendant, conditioned to be void if the plaintiff abide by and perform the judgment of the court in the premises.” Shannon’s Code Tenn. § 5131. By section 5144 it is provided that, “if the issue is found for the defendant, or the plaintiff dismisses or fails to prosecute his suit, the judgment shall be that the goods be returned to the defendant, or, on failure, that the defendant recover their value, with interest thereon and damages for the detention, the value of the property and the damages to be assessed by the jury trying the cause. * * *”
The defense against a judgment in favor of the defendant for the value of the property and for damages for detention was grounded upon the following circumstancеs:
The lumber seized was upon a barge lying at the bank of the Mississippi river. The defendant had contracted to sell to the Chicago Mill & Lumber Company a large amount of lumber, and had loaded upon a barge belonging to that company something more than 400,000 feet when the marshal executed the plaintiff’s writ of replevin. This writ he returned “as executed as the law directs by taking the within described property out of the possession of the within named H. B. Blanks, and delivering said property to O. H. Scoggins, agent of the Three States Lumber Company, for the said Three States Lumber Company.” Although there was upon the barge considerably more than 250,000 feet of lumber, no separation appears to have been made, and there was evidence tending to show that, although the plaintiff’s agent claimed possession of only 250,000 feet, he took possession of the barge and all of the lumber thereon, and made no effort to separate that seized or claimed from that not so claimed. However defective such a levy may be as against the defendant or a stranger, in a proceeding where such a question might be properly made, it is clear that if the plaintiff obtained the actual possession of the lumber of the defendant under his replevin writ, whether by right or by wrong, he is, for the purposes of the questions here to be considered, estopped to say that the writ was wrongly issued or executed, оr to contradict the return of the marshal. 6 Bacon, Abridgment (Wilson’s Ed.) star pages 59, 60.
This barge, while lying at the bank of the river, sank through stress of storm, and about half of the lumber was submerged. The plaintiff thereupon raised the barge; and loaded the lumber upon other barges hired by it, and carried the lumber to Cairo, Ill. There the plaintiff
The decree of the district court in this proceeding is now relied upon as a comрlete defense to any demand of the defendant for a judgment for the return of the lumber seized, or for its value, or for its detention, although the plaintiff had no shadow of title or right to the lumber taken under its writ of replevin. The conclusiveness of that decree as a decree in rem is not and cannot be collaterally disputed. By that decree it is effectually determined that the plaintiff had rendered salvage services to the extent of $1,833.29, and that the same could be enforced, at its demand, against the lumber in question. Under the ■sale made in pursuance of that decree, the title and right of possession have effectually passed to the purchaser.
The question we must decide is whether that proceeding operates as a discharge of the plaintiff’s obligation to prosecute his suit with effect, or return the property replevied to the defendant, or pay its value, and damages for detention. Replevin is one of the most ancient and well-defined writs known to the common law. The plaintiff in replevin does not take or hold the goods replevied as a bailee or custodian, nor are the goods in any sense in custodia legis. It is an ancient common-law proceeding by which the owner recovers possession of his own. It is defined in the old books as “a redelivery to the owner, by the sheriff, of his cattle or goods distrained upon any cause, upon surety that he will pursue thе action against him that distrained. If he pursue it not, or if it be adjudged against him, then he who took the distress shall have it again, and for that purpose may have a writ of retorno habeno.” 6 Bacon, Abridgment (Wilson’s Ed.) side page 52. By the statute of Westminister II, c. %, § 3,13 Edw. I, the sheriff was required to take pledges from the plaintiff in an action of replevin that he would prosecutе the suit and return the property replevied if the court should so direct, and by a later statute of the time of George II he was required to take a bond with sureties that he would prosecute without delay, and for the return of the property in case its return should be awarded. 24 Am. & Eng. Ency. Law (2d Ed.) p. 529. If the goods were not restored under the writ of retorno habendo, this wаs a breach of obligation to return, and the return of elongata or eloignment by a sheriff on a writ de retorno habendo is conclusive in an action on the replevin bond. Caldwell v. West, 21 N. J. Law, 411. The plaintiff’s possession of the goods is for himself. His pledges or sureties are substituted for the goods, and he holds subject to his own disposition, free from any lien in behalf оf his sureties. 6 Bac. Abr. *67. His failure to establish his title fixes his status as a wrongdoer. Being a wrongdoer, he is not permitted to set up even a blameless loss or de
The Tennessee Code provisions prescribing the bond to be executed and the judgment to be rendered when the plaintiff fails in his suit do nоt materially depart from the common law and the terms of the ancient statutes requiring the plaintiff to give security for the return of the property if it shall be so adjudged, unless it be in respect to interest upon the value, and the option to the plaintiff to return or pay value. The statute in no wise deals with the consequence if the plaintiff is unable to return by reason of the loss or destruction of the property replevied. The Tennessee Supreme Court in Bobo v. Patton,
The question as to what will excuse a plaintiff for the nonreturn of property replevied when he fails to estаblish his title is clearly a question of general law, and was so regarded by the Tennessee court in the case cited. It is not a decision establishing a rule of property, as in Warburton v. White,
Nor is such a plaintiff a mere custоdian, responsible only for negligence. As we have seen, replevin is a redelivery to the owner of goods wrongfully taken or detained. If in fact he is not the owner, his claim was groundless, and he must restore that wrongfully taken, and will not be heard to say that he held at the risk of the true owner, and was liable only for negligence as a receiver or other bаilee. But if we shall regard the case of Bobo v. Patton,
Considering the conclusiveness of the proceeding as to the lumber, and its liability as a whole to the salvage and towage claim asserted by the plaintiff as sole libelant, the fact remains that the lumber was so seized and subjected to this claim only at the instance of the plaintiff and solely for its own benefit. There was evidence that the plaintiff’s agent was not only in the possession of the replevied lumber, but of the entire cargo, as well as the barge. Whether it be regarded as in possession of the replevied lumber as owner, or оnly as a bailee or custodian, it was under obligation to protect it against loss or injury, and in taking it off the submerged boat it was but saving its own or that committed to it as a bailee. Fleming v. Lay,
Conceding, for the purposes of this case only, that the plaintiff was wholly without fault, and that under the case of Bobo v. Patton the injury sustained by the replevied lumber should be regarded as a loss or destruction pro tanto, and allowancе made for this in the recovery against plaintiff for damages for detention, the question remains whether the subsequent carrying of the lumber to Cairo, and there enforcing against it both a salvage and towage claim, by means of which the lumber has passed beyond the control of the plaintiff, is a discharge of his liability to pay the value of defendant’s lumber. Whаt plaintiff did in saving the defendant's lumber from loss and injury by water it was under obligation to do as one in possession under claim to ownership. What it did in carrying it, after it was saved, to Cairo, and there causing it to be seized and sold, it did voluntarily and in its own exclusive interest. The obligation to return the replevied lumber or pay its value and damages for detention has not becоme impossible through an “act of God, or of the obligee, or of the law,” except as the law was put in force by the plaintiff for its own purpose. An obligation which is excused by act of law is where a covenant or condition subsequent, which is law when made, becomes subsequently unlawful by a change in the law. Thus, when property was conveyed to be used for burial purposes, and such use becomes subsequently unlawful, the forfeiture is excused. Board of Commissioners, etc., v. Young,
The judgment below was for the value of the lumber at the time it was taken, with interest. That much was in strict accordance with section 5144, Shannon’s Code Tenn., as construed in Mayberry v. Cliffe,
We, the jury, find for the defendant:
235,000 feet of cottonwood lumber at $12.00 per thousand, amounting to........................................................$2,820 00
Interest from' January 22, 1902, to date............................ 241 11
$3,081 11
We also fix damages at........................................... 822 50
Total.................................................. .... $3,883 61
We arrive at the damage in the following manner:
117.500 feet, at $18.00 per thousand...............................$2,115 00
117.500 feet, at $13.00 per thousand............................... 1,527 50
Total......................................................$3,642 50
Less value at time of seizure..................................... 2,820 00
Damage...................................................$ 822 50
It thus appears from the verdict that the jury found that one-half of thе lumber seized had not been damaged at all, and that the other half had sustained a damage of five dollars per thousand, which reduced the value of the lumber at date of trial by $587.50, and this was accordingly deducted from the damages for detention. The plaintiff has thus been allowed to reduce the damages recoverable otherwise by the amоunt of the injury done the lumber by the sinking of the barge while it was in its possession. This was admissible only upon the’ theory that plaintiff was liable only for a loss due to its own negligent act. The plaintiff in error cannot complain of this, and the defendant in error has not.
In our view of the case, the plaintiff has obtained a better result than it was entitled to, and the judgment must be affirmed.