Perry v. Post

Park, C. J. The question in this case is as to the correctness oí the rule of damages adopted by the court below in rendering judgment for the plaintiff. The court assessed damages to the amount of the value of the actual interest which the Simpson Waterproof Manufacturing Company had in the property attached at the time the bond in question was given; and ruled out evidence offered by the defendants to show the value of such interest 'at the time when the judgment was rendered in the original suit. The question then is, whether in an action on a bond, substituted for an attachment of property under the statute, damages shall be assessed to the amount of the value of the property attached at the time the bond was given, not exceeding the judgment rendered in the suit in which the attachment was made, or to the amount of i the value of such interest at the time the judgment was rendered. The defendants insist that the true rule of damages under the statute is the value of the property at the -time when the judgment was rendered. Their claim is based on the theory that the bond is a substitute for the lien created by the attachment, and not for the property attached; and that therefore when the judgment was rendered in the original suit, the bond substituted for the lien on the property represented the attachment lien, and could be of no more value at that time than the attachment would have been if it had not been dissolved; and inasmuch as the value of the attachment would have been measured by the value of the property, so also the value of the bond should be determined by the same rule. Hence they conclude that inasmuch as the bond could not be broken [357] till the judgment was rendered, its value at that time is the measure of damages. But the argument is fallacious. The fallacy lies in the premises. The bond was not substituted for the attachment lien, but for the property attached. If it was a substitute for the lien, then if the property was destroyed the bond would cease to have any binding obligation; its virtue would be gone, like an attachment lien on property destroyed. This is not so. If the property were destroyed the bond would remain with all its original obligation. The defendants further claim that the obligation of the bond is like the obligation of a receipt given to an officer to release property attached. But there is but little analogy in the cases. The obligor in a receipt has the privilege of returning the property to the officer in fulfillment of his obligation ; but the obligor in a bond of this character has no such privilege. He undertakes absolutely to pay the amount of the bond, if it should prove to be equal to or less than the amount of the judgment rendered in the suit in which it was taken. He undertakes to secure the future contingent judgment at all events, to the amount of the bond. Eor a like reason there is no analogy between a bond of this character, and a bail-bond given to an officer, or a bond given for the appearance of a party in a criminal proceeding. In both of these cases cited by the defendants as analogous, the bond is fulfilled by the production in court of the party named in it. The party is regarded as in the custody of the bail in the meantime, as property attached is considered in the care and custody of the receiptor awaiting the judgment to be rendered in the case. We think it clear that the bond in this case took the place of the property attached. The statute provided a tribunal to determine the value of such property at the time the substitution was made, and required that the bond should equal that value in amount. No time is mentioned in the statute with reference to which the valuation shall’ be made, but the implication is strong that it shall be made with reference to the time when the hearing upon the application for the bond is had. [358] This construction of the statute approaches nearer to justice between parties than any other which can be given. The property may rise in value, and it may fall. The probabilities regarding it may balance each other. The bondsman may fail and become irresponsible. To balance this uncertainty the plaintiff, on the bond being given, is relieved of any further trouble concerning the property. Should he fail in his suit, he will' have no large bills of expense to pay for beeping the property under attachment. The construction contended for by the defendants would manifestly work injustice. The attached property may be a store of dry goods. The goods may be sold, and scattered beyond discovery before judgment shall be rendered, when the plaintiff would have no opportunity of showing their value. We do not advise a new trial. In this opinion the other judges concurred,