Petrie v. Rideout, [1925] SCR 347

Supreme Court of Canada

Petrie v. Rideout, [1925] S.C.R. 347

Date: 1925-02-03

William M. Petrie and Others (Defendants) Appellants;

and

George R. Rideout and Another (Plaintiffs) Respondents.

1924: November 13; 1925: February 3.

Present: Anglin C.J.C. and Idington, Duff, Mignault, Newcombe and Rinfret JJ.

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF NOVA SCOTIA

Replevin—Recovery of goods—Subsequent dismissal of action—Return of goods not ordered. Action on bond—Right to order for return or damages.

P. brought a replevin action to regain possession of goods seized under process of law. He succeeded at the trial and the goods were delivered

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to him. The judgment in his favour was reversed by the full court but return of the goods or damages for their detention was neither demanded nor adjudged. In an action on the replevin bond.

Held, that as the obligees could, in the replevin action, have claimed and obtained an order for return of the goods or for damages they cannot claim it in this action.

APPEAL per saltum from a decision of a judge of the Supreme Court of Nova Scotia in favour of the respondent.

The appellant W. M. Petrie imported beer into Sydney, N.S., which was seized by respondent Rideout, inspector, under the N.S. Temperance Act and Petrie was convicted by respondent Muggah, stipendiary magistrate, of a violation of the Act. The beer was ordered to be destroyed but appellant brought action to replevy it and obtaining judgment at the trial regained its possession. This judgment was reversed on appeal to the Supreme Court en banc but no order was made for a return of the beer or damages for its detention nor was such order asked for. An action was then brought against appellants on the replevin bond claiming a return of the beer or damages and at the trial before Mr. Justice Rogers judgment was given for respondents for $3,000 the beer having been sold or otherwise disposed of. By consent of parties an appeal was taken from this judgment directly to the Supreme Court of Canada.

C. B. Smith K.C. for the appellants. The defendant has satisfied the judgment against him and is no further liable. See The Queen v. Cameron[1]; Wright v. Reeves[2]; and Bauld v. Velcoff[3].

C. B. Smith K.C. for the appellants.

W. F. O'Connor K.C. for the respondents.

The judgment of the majority of the court (the Chief Justice and Duff, Mignault, Newcombe and Rinfret JJ.) was delivered by

Newcombe J.—The respondents (plaintiffs) recovered judgment in the Supreme Court of Nova Scotia against the appellants (defendants) for $3,000 damages for breach of the condition of a replevin bond, given in an action brought against them in the same court by the appellant, William M. Petrie, wherein he had caused to be replevied a quantity of light beer of the value of $3,000, as stated in his affidavit, which was made to lead the replevin order.

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By the obligation of the bond the appellants are bound jointly and severally to George B. Ingraham, Sheriff of the county of Cape Breton, in the penal sum of $6,000. There is a recital that the appellant, William M. Petrie, had obtained an order for replevin against the respondents to obtain possession of 137 barrels of beer, which he asserts to be his property, and the condition is expressed in the following terms:

Now the condition of this obligation is such that if the said William M. Petrie shall prosecute his suit in which the said order was made, with effect and without delay, or if the suit is carried on and continued between the said William M. Petrie and Fred G. Muggah and George R. Rideout touching the said goods, and the court shall adjudge that the goods shall be restored to the Fred G. Muggah and George R. Rideout, with damages for detaining the same, then if the said William M. Petrie shall restore the said goods and pay and satisfy any judgment that may be obtained against him, as well as any other costs which the said George B. Ingraham may incur by virtue or on account of this suit, or of the said replevin, then this bond shall be void otherwise to remain in full force and virtue

The respondents by their statement of claim alleged that although the appellant, William M. Petrie, succeeded at the trial of the action of replevin, the judgment was reversed on appeal and the action dismissed by the Supreme Court en banc; moreover that the last mentioned judgment dismissing the action was affirmed on appeal by the Supreme Court of Canada; the respondents alleged as breaches of the bond that:

The defendants have not restored the said goods to the plaintiffs nor any part thereof, as adjudged by the said decisions, nor paid, nor satisfied the plaintiff for damages for detaining the same.

Then it was further alleged by the statement of claim that the sheriff had assigned the bond to the plaintiffs, who had served notice of assignment upon the defendants, but that

the defendants have refused and neglected to restore the said goods, or to satisfy the judgment obtained against the said defendant, William M. Petrie,

and the plaintiffs claimed

return of the said goods set out in the statement of claim; damages for detention of same; payment of the value of the said goods, namely, $3,000;

other relief as the court might order, and costs of the action.

At the trial it was admitted that the defendant, William M. Petrie, imported a car of beer containing 137 barrels which was marked "Ale and Porter" and that the car arrived at Sydney 30th April, 1921; that the plaintiff, Ride-

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out, was inspector under the Nova Scotia Temperance Act for the city of Sydney at the time, but had since left the city, and was at the time of the trial residing at Moncton; that the defendant, Muggah, was Stipendary Magistrate for the city of Sydney; that the plaintiff, Rideout, secured a search warrant and seized the 137 barrels of beer which he placed in the city warehouse, and laid information against the defendant, William M. Petrie, for importing the liquor contrary to the provisions of the Dominion Act, c. 19 of 1916; that the hearing of the prosecution began on 12th May and continued with several adjournments until 13th June, and that on 26th June, 1921, the magistrate convicted the defendant, William M. Petrie, and ordered that the beer should be destroyed; that the defendant, William M. Petrie, in the meantime, on 14th June, brought his action for replevin, gave the bond in question and caused the 137 barrels of beer to be replevied; that the action was not brought to trial until the June term of 1922, and that in the interval the County Court judge quashed the conviction against the defendant, William M. Petrie; that the trial judge decided the action in favour of the plaintiff, and that the appeal from his decision was heard in November, 1922, and allowed; that the costs of the action and of the appeals were paid by the defendant, William M. Petrie, prior to the commencement of the action upon the bond, but that he did not return the goods nor pay the value of them.

The appellant, William M. Petrie, testified that he had received from the sheriff in the replevin action 137 barrels of beer; that he had stored it pending the trial of the action; that while in storage about half of the quantity was frozen; that five or six barrels were stolen; that, after the judgment which he recovered at the trial, he had sold the remainder at retail or wholesale, the price at the former rate being 20 cents per bottle, and at the latter rate $20 per barrel, and that thus all the beer was disposed of in 1922 or in 1923; he says moreover that the beer being of a light variety would not keep indefinitely, but would turn sour. He estimates that the saleable quantity, upon which he realized, was 55 or 60 barrels.

In the replevin action the defendants did not claim return of the goods or damages, but they justified the taking, Ride-out

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as Inspector under the Nova Scotia Temperance Act for the city of Sydney, and Muggah, as the Stipendiary Magistrate for the same place, and they alleged that the beer was lawfully in their custody, in their respective capacities, as officers of the law. The case is reported upon appeal to the Supreme Court of Nova Scotia en banc under the name of Petrie v. Rideout[4]. The judgment of the court was pronounced by Chisholm J., who came to the conclusion to allow the appeal and dismiss the plaintiffs' action for reasons which are stated as follows:—

The beer having been properly brought before the magistrate—as I think it was, the rule laid down in Lavie v. Hill[5], and The Mayflower Bottling Co. v. McCormick[6], that the magistrate should have a reasonable time within which to deal with the charge in the information has, I think, application. There is nothing in the case to shew that there was any undue delay on the part of the magistrate. When the action was commenced and the order to replevy was issued, the beer was in the custody of the court. The plaintiff was not entitled to possession of it, and the action was not maintainable. When he commenced his action he had, in short, no cause of action. The claim must be tried with reference to the state of things as they then existed, and not as they developed later. The action should be dismissed with costs to be paid to the defendants by both plaintiffs, and the defendants should have judgment for said costs when taxed. This decision does not in any way affect the judgment of the learned county court judge so far as the latter quashes the conviction. His decision is final as regards the conviction.

From this judgment the plaintiff, William M. Petrie, appealed to the Supreme Court of Canada, and upon the appeal it was adjudged that the judgment of the Supreme Court of Nova Scotia en banc should be affirmed, and that the appeal should be dismissed.

There was thus in the replevin action no judgment either for return of the goods or for damages for their detention; but there was upon the appeal an affirmation of the finality of the judgment of the county court quashing the conviction.

The action of replevin in the province of Nova Scotia was formerly regulated by c. 94 of the Revised Statutes, 4th series, respecting pleadings and practice in the Supreme Court, ss. 329 to 345, and it was provided by s. 2 of this chapter that the practice and proceedings of the court should conform as nearly as might be to the practice and proceedings of the superior courts of common law in force

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previous to the first year of the reign of King William IV, and that in all cases where the proceedings and practice of the superior courts of common law in England differ from each other those of the Court of Queen's Bench should prevail. Afterwards when the Judicature Act was enacted, followed by the adoption of the English Rules of 1883, which, with modifications, were brought into force in Nova Scotia on 1st October, 1884, the former statutory provisions with regard to replevin were embodied in these rules as Order XLV, comprising nine rules corresponding mutatis mutandis to ss. 331 to 336 inclusive, and 343 of the Practice, as enacted by c. 94 of the Revised Statutes, 4th series; and it was provided by s. 44 of the Judicature Act that, save as by that Act, or the Rules of Court, otherwise provided, the forms and methods of procedure which, immediately preceding 1st October, 1884, were in force, and not inconsistent with the Judicature Act, or any Rules of Court, should, as nearly as might be, continue to be used and practised in the Supreme Court in such and the like cases, and for such and the like purposes, as would have been applicable in the Supreme Court prior to that date. Thus the former practice respecting replevin, in so far as it is adapted to the general policy of the new rules of procedure, remains in force, and therefore the practice should now conform to the rules as adopted in 1884, and, in matters not therein provided for, to the former practice, so far as not inconsistent with the new rules.

It is provided by Rule 4 of Order XLV, which corresponds to section 333 (in part) of the former practice, that the sheriff shall not serve the order for delivery until he shall have replevied the property; and, by the next following rule, which is also derived from s. 333, that before replevying he shall take a bond in double the value of the property to be replevied as stated in the order, and that "the bond may be in Form No. 51 in Appendix 'K,' with such variations as circumstances require." This form is reproduced as follows:

Whereas, the said A. B., has obtained an order for replevin against C. D. to obtain possession of certain cattle (or goods) to wit..… which the said A. B. asserts to be his property.

Now, the condition of this obligation is such, that if the said A. B. shall not prosecute his suit in which the said order was made, with effect and without delay, or, if suit is carried on and continued between the said

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A. B. and C. D. touching the property of the said cattle (or goods), and the court shall adjudge that the said cattle (or goods) shall be restored to the said C. D. with damages for detaining the same, then if the said A. B. shall restore the said cattle (or goods) and pay and satisfy any judgment that may be obtained against him, this bond shall become void.

There is no express requirement in the body of the statute or rules as to what the condition of the bond shall be, except the clause quoted from Rule 5 that the bond may be in that form, with such variations as circumstances require; but it will be observed that the form set out in the appendix contemplates that the court may adjudge not only a return of the goods to the defendant, but also damages for detaining the same.

The form does not in anywise contradict any enactment of the statute or of the rules; it is as much a part of them as any other part, Attorney General v. Lamplough[7], and it clearly evidences an intention to adhere to the former practice under which a successful defendant in replevin was generally entitled not only to a return of the goods, but also to recover damages for their detention. It is laid down in Tidd's Practice, 9th ed. 993, that upon a judgment in replevin for defendant the execution at common law is for a return of the goods; to which damages are superadded by the statutes of 7 Henry VIII, c. 4, s. 3, and 21 Henry VIII, c. 19, s. 3, or upon the statute 17 Car. II, c. 7, for the arrearages of rent, and costs; and, at page 1038, that

when judgment is given on demurrer, for a return of the goods the avowant may immediately have a writ of retorno habendo, and inquiry of damages; and after verdict, or inquiry executed, he may have a retorno habendo, and fieri facias for the damages and costs, in the same writ.

In an anonymous case reported in 2 Mod. 199,

it was the opinion of North, Chief Justice, that in replevin both parties are actors; for the one sues for damages and the other to have the cattle.

Bacon's Abridgement, vide tit. Replevin and Avowry. Therefore it is well stated in Mayne on Damages, 9th ed. 414 that:

The action of replevin is an anomalous one, in this respect, that both plaintiff and defendant are actors in the suit. In fact it consists of two cross actions; in which one party claims damages for having his goods seized, while the other party claims satisfaction for some demand out of which the seizure arose. One result of this peculiarity is that either party may obtain damages.

And that this is true with regard to the action as regulated by the Nova Scotia Practice I see no reason to doubt.

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Comparison of the bond executed in the case with the form prescribed by the rule shews that the former contains some additions which perhaps are not material, principally a clause affording indemnity to the sheriff for any costs which he may incur on account of the suit. In Jackson v. Hanson[8], the form of the condition of a replevin bond was improperly expressed; namely, to appear at the then next county court and then and there to prosecute the suit with effect. Following the statute, the condition should have been to appear at the then next county court and prosecute the suit with effect and without delay, but Parke B. considered that he should nevertheless construe the condition in accordance with the statutory intention, because the object of the bond was that the question whether the goods were rightly taken should be properly litigated, in the ordinary way, but with reasonable speed, and that the condition ought to be interpreted in that sense. There is less difficulty in this case to interpret the condition of the bond in conformity with the statutory form. It is said in Perreau v. Bevan[9], following Morgan v. Griffith[10].

that in all replevin bonds there are several independent conditions; one to prosecute, another to return the goods replevied, and a third to indemnify the sheriff; and a breach may be assigned upon any distinct parts of the condition. And it is material that this should be the case, for, though a return of the distress may have been actually made, as well as adjudged, yet the avowant may and will still be damnified, by reason of his costs of suit, where the distress so returned is not of sufficient value to pay him his costs, as well as his arrears of rent.

It has been shewn that in the present case all these material conditions have been stipulated, and also that the costs of suit, the only indemnity adjudged against the replevisor, have been paid. In Perreau v. Bevan9 it is also said that there may be cases in which failure to prosecute the action to final success is a breach of the condition to prosecute with effect although there be no judgment for return; there is here no claim for damages for breach of that condition, and there is no authority cited, or which I have been able to discover, that, after judgment upon verdict which does not order a return of the goods or damages for their detention, the value of the goods or these damages can be recovered upon assignment of a breach of the condition to

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prosecute with effect. It is not unworthy of remark that the prosecution of the replevin action was not without effect in the sense that the plaintiff obtained by means of the replevin order the possession of the goods, and upon the final judgment dismissing his action was not ordered to return them; but as to whether or not this could be regarded as satisfying the condition to prosecute with effect, I express no opinion. The English form of condition, applicable to proceedings in the County Court, as set forth in Tidd's Forms, 571, requires that the principal obligor shall appear at the next county court and prosecute his suit with effect and without delay and make return of the goods and chattels "if a return thereof shall be adjudged"; if these conditions be complied with the obligation is to be void, or else to be and remain in full force and virtue. In the present case the condition in accordance with the form prescribed in the appendix to the rules is stated in the alternative; and it is thereby stipulated that if the said William M. Petrie shall prosecute his suit with effect and without delay, or, if the suit is carried on and continued between the parties, and the court shall adjudge that the goods shall be restored to the defendants with damages for detaining the same, then in the result the bond is to become void if the plaintiff restore the goods and pay and satisfy any judgment that may be obtained against him, as well as any other costs which the sheriff may incur by virtue or on account of the suit or of the replevin. Now there being no judgment for restoration of the goods, neither was there any judgment for damages for detaining them; the plaintiff's action was dismissed with costs, and the plaintiff satisfied the second or alternative condition in so far as it was capable of performance by paying and satisfying the judgment for costs which had been obtained against him. The condition expressed by the words "if the said William M. Petrie shall restore the said goods" is, I think, subject to the qualification, such as appears in the English form, "if a return thereof shall be adjudged"; and of course if the alternative condition be satisfied the obligation becomes void, even though the plaintiff did not prosecute his suit with effect. The obligor is entitled to a reasonable and beneficial interpretation of the condition which is for his

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benefit; it is said in Shepherd's Touchstone, 8th ed. 376a, that:

The condition of an obligation, which is doubtful, is always taken most favourably for the obligor, in whose advantage it is made, and most against the obligee; yet so as an equal and reasonable construction be made according to the minds of the parties, albeit the words sound to a contrary understanding.

Cases may be imagined in which obviously there could be no order against the plaintiff for return of the goods or damages for detaining them, although the plaintiff fail to succeed; for instance if the defendant were to maintain a plea of non cepit; or if the defendant were to exercise the right which he has under Rule 9 to retain the possession by giving security to the sheriff for the restoration of the goods if adjudged. Evans v. Ross[11]. Therefore I think that while the first part of the condition provides for the event of a successful issue of the suit, the second or alternative part is intended to provide for a termination which is not successful, and that the object of it is to insure that the goods shall be returned if they are ordered to be returned, that damages shall be paid to the defendant if damages be adjudged, and that the defendant shall receive any costs which may be adjudged to him in the cause. In the present case it appears to have been considered by the Supreme Court en banc that the action of replevin failed because brought prematurely. It is said that when the plaintiff commenced his action the beer was in the custody of the court; that the magistrate was entitled to a reasonable time within which to determine the complaint, and that the claim should be tried with reference to the state of things which existed at the commencement of the action, and not as it developed later; but it is expressly affirmed that the decision in no way affects the validity of the conviction, which was quashed by the county court judge, whose decision is final. Whether in these circumstances the absence from the judgment of any term relating to the return of the goods was deliberate, upon the consideration that the defendants had not claimed a return, or that they were not entitled to a return; or whether the question of return was not submitted, and therefore not considered, does not appear; but I think it was for the defendants if

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they desired the return of the goods or damages for their detention, to have brought those questions forward for the determination of the court in the replevin action. If because the questions of return and damages were not submitted or determined in the replevin action the plaintiff in that action has secured an advantage, which cannot in the circumstances be affirmed, it was because the defendants failed to avail themselves of the opportunity which the cause afforded, and it is too late in the present action to set up, as the respondents now seek to do, the loss of the liquor as damages to be recovered for breach of the condition of the bond.

It may be observed that the breaches assigned, and for which the respondents recovered at the trial, are that the defendants did not restore the goods nor pay damages for detaining them, also it was averred that they did not satisfy the judgment obtained against the defendant, William M. Petrie. Upon the latter allegation the respondent by the admission and the findings failed in fact; and, as to the return of the goods and damages for detention, the parties were properly convened in the replevin action, and it was competent to the court in that action to have given the relief which is now sought. If in that action a return had been claimed, and if damages had been claimed, these claims would have been successful, if a claim for compensation for not returning the goods and for damages for their detention can now be successful. Serrao v. Noël, in the Court of Appeal[12], is a distinct authority that the plaintiffs are precluded from maintaining a subsequent action for the same cause. This was an action concerning the title of shares in a Mining Company which belonged to the plaintiff, but which had been lodged by the plaintiffs' broker with the defendant as security for an advance, and the plaintiff claimed to restrain the defendant from parting with the shares or registering them in the defendant's name, and for such further or other relief as the nature of the case might require. The defendants in that action consented to an order for the delivery up of the shares to the plaintiff forthwith, and the order directed that upon the delivery register should be stayed. When the shares were

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delivered they were sold at considerable loss, and the second action was brought to recover damages for the detention. It was held that the plaintiff was estopped. The first action had been brought in the Chancery Division and the second action was in the Queen's Bench Division. This led to some confusion at the trial, but it was explained on the appeal that the Court of Chancery no longer existed; that although there are two divisions, Queen's Bench and Chancery, they are divisions of one court which administers one law, and that the claim in the second action might therefore have been maintained in the first action. Bowen L.J. said:

I too am of opinion that the defendant is entitled to judgment. The principle is, that where there is but one cause of action, damages must be assessed once for all. The plaintiff relies upon a certain cause of action; was this cause of action capable of being litigated in the suit in the Chancery Division? If that had been an action of detinue at common law, the jury in their assessment could have included, not only damages for the original wrongful detention, but also damages for the detention until the shares should be re-delivered; damages might have been assessed once for all. The suit in the Chancery Division was an application to the High Court of Justice for all kinds of relief, in order that the rights of the parties might be adjusted. As soon as the writ was issued and the claim delivered, the court was empowered to do what was right between the parties. It may be said that the plaintiff did not claim damages in the suit in the Chancery Division. I am not sure that he did; the primary object of the action was that it should be a proceeding to obtain the re-delivery of the shares, and perhaps it did not occur to the plaintiff to make it clear that he intended to include a claim for damages; but if an application had been made, the court would have amended the claim, so as to enable the plaintiff to claim damages, and therefore damages not only could have, but also would have, been assessed at the time of the trial in the Chancery Division. In the present case there was a re-delivery of the shares made upon an arrangement arrived at in the course of the suit; the cause of action now litigated is the detention of the shares; that cause of action was litigated in the action in the Chancery Division, and therefore the two actions are in respect of the same cause.

In Gibbs v. Cruikshank[13], the plaintiff in replevin recovered as damages the amount of the expenses of the replevin bond, and, having sustained further consequential damages by reason of the seizure of his goods, he subsequently brought this action to recover these damages, and it was held that the recovery in replevin was á bar to the action inasmuch as the special damages were recoverable in that action. Brett J. at page 463 said:

Replevin is a common law action for the taking of goods. By the course of procedure in that action the goods are returned in the course of the action. It was argued by Mr. Foard that the action was for the mere

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purpose of recovering back the goods. I do not think that can be so, for if so, the plaintiff could never have recovered what in every action of replevin he does recover, the expenses of the bond. It seems to me that wherever, in a common law action, the plaintiff can recover damages, he must be entitled to recover all the legal damages he has sustained. Some of these damages are called common and others special damages. There is no essential difference between the two, further than that the latter must be specially mentioned in order to give notice to the defendant that they are claimed. I can find no authority that special damages cannot be recovered in replevin.

Now there can be no doubt that the return of the goods to the respondents, if they were entitled to a return, was enforceable in the replevin action and, having regard to the rules of the practice in Nova Scotia, it would seem that the damages, if any, which the defendants sustained by reason of the replevin were also recoverable, certainly if proper allegations had been made; and therefore I think upon the principle of Gibbs v. Cruikshank[14], which is an authority of high standing, the respondents (defendants in replevin) are precluded from setting up these damages in their action upon the replevin bond. It is said that an order for the return of the goods would have been of no value to the respondents because in the interval the beer had been frozen or spoiled or had been disposed of; but these are matters which would have come up for consideration upon the sheriff's return if restoration had been ordered, when, as is said in Tidd's Practice at page 1038, the defendant,

on the sheriff's return of elongata, may either have a capias in withernam, for taking other cattle and goods in lieu of them; or he may sue out a scire facias against the pledges, for a return, on the statute Westm. II (13 Ed-. I) c. 2; or, if the distress was for rent, and the sheriff has taken a replevin bond, under the statute 11 Geo. II, c. 19, s. 23, the defendant may take an assignment of it, and bring an action thereon against the pledges, if sufficient; or if the sheriff has omitted to take a replevin bond, or the pledges were insufficient at the time of taking it, he may proceed by scire facias, or action on the case against the sheriff for neglect of duty.

This was the ancient procedure, which was, as I have shewn, certainly continued by statute in Nova Scotia down to 1st October, 1884, and is still, I should think, available by reason of section 44 of the Judicature Act. But, in any case, if the plaintiff in replevin, having failed to prosecute with effect, and having been ordered to return the goods, neglected to comply, there could be no question as to breach of the alternative conditions of the bond.

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The learned trial judge suggests that the condition for return of the goods is inserted in the bond for the benefit of the plaintiff in replevin, who might prefer to return the goods and pay detention damages, rather than to retain them and pay their value as at the date of the replevin, and for this he cites a Pennsylvania case, Gibbs v. Bartlett[15]. But with the utmost respect I am unable to accept this view. It would seem strange that when the question of title is tried in the replevin action and found for the defendant it should be at the plaintiff's option to retain the goods by payment of their value as at the date of the action, or as fixed by the plaintiff's affidavit upon which the order was obtained. I prefer the view expressed by Brett J. that by the course of procedure in the action of replevin the goods are returned in the course of the action. Moreover, there is a considerable variety of opinion expressed in the State Reports of the United States, and it is not difficult to find cases there in which the doctrine that the judgment retorno habendo is intended for the benefit of the plaintiff is contradicted.

The Massachusetts' decisions were always regarded in Nova Scotia as sources of wisdom, although not, of course, as possessed of judicial authority; there was a case decided in the Supreme Judicial Court of that State, Whitwell v. Wells[16], in which it was held in substance that judgment for return of goods replevied did not follow ex debito justitiae upon dismissal of the action; that the order for return was discretionary; that the jurisdiction ought to be exercised as the ends of justice might require, and that a party should not be allowed to acquire a better title by unsuccessful proceedings in replevin than he had before; that it might happen that the facts upon which the pleadings were founded ceased to exist before the final judgment, and that in such case the court should receive evidence of the intervening facts and render judgment according to the justice of the case at the time,

As, if the defendant had a special property in the chattels and a right to possession of them which terminated before final judgment, the court would render judgment for the defendant for costs, but not for a return, because at the time of rendering judgment he had no right to the possession.… The law would not do so vain an act as to cause a

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return to the officer who would have been bound immediately to restore them (the goods) to the plaintiffs.

This appears to be a more reasonable view, and I cite the case because it appears to be founded on principles which are inconsistent with the view expressed in the Pennsylvania case, that the judgment for return by an unsuccessful plaintiff judicially depends in anywise upon his election.

I am disposed therefore to conclude that although the appellant, William M. Petrie, may have failed to prosecute the replevin action with effect, he did nevertheless, seeing that there was no judgment for return or for damages, satisfy the alternative condition of the bond by paying and satisfying the judgment which was obtained against him.

The appeal should therefore be allowed and the action dismissed with costs throughout.

Idington J.—This appeal arises out of an action upon a replevin bond given the sheriff in an action of replevin. And as that action was dismissed said bond was assigned by him to respondents who sued thereon and were given judgment not for the penalty of $6,000 and damages assessed as usual in such like actions on a penal bond.

The condition of said bond is as follows:—

"Now the condition of this obligation is such that if the said William M. Petrie shall prosecute his suit in which the said order was made, with effect and without delay, or if the suit is carried on and continued between the said William M. Petrie and Fred G. Muggah and George R. Rideout touching the said goods, and the court shall adjudge that the goods shall be restored to the Fred G. Muggah and George R. Rideout, with damages for detaining the same, then if the said William M. Petrie shall restore the said goods and pay and satisfy any judgment that may be obtained against him, as well as any other costs which the said George B. Ingraham may incur by virtue or on account of this suit, or of the said replevin, then this bond shall be void otherwise to remain in full force and virtue."

The question upon which I think this appeal should turn is the true construction of said condition.

The appellants contend that there are clearly two alternatives in the said condition, the first one of which is that William M. Petrie, the plaintiff, shall prosecute his suit "with effect and without delay."

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The second alternative is the remaining part of the said condition.

And appellant contends that the second is all that is involved herein for there never was any judgment ordering the return of the goods, or judgment for damages and in as much as all the judgment provided for was the costs, and that all said costs have been paid, which is not disputed.

I am not inclined to think there is so much importance to be attached to the use of "or" instead of "and" as some of the arguments addressed to us implied; but appellants are clearly entitled to such advantage as there is in its being taken literally.

With great respect I cannot think there is any room for the reading which the learned trial judge suggests of substituting "and" for "or."

The purview of the entire condition is such as contemplates a judgment shall be expressed by the court relative to all that may happen to be involved in the questions arising in the trial of the case.

I need not enlarge on that topic and point out how many divers things may occur in the course of a trial in a replevin action.

In this particular instance I fail to see what right the respondents had to the goods, which was a cargo of 1·89 per cent beer.

There was a search warrant for it and a prosecution taken as the result of such a find by respondent Rideout, before respondent Muggah, a magistrate who heard the case and convicted the appellant W. M. Petrie, and ordered the goods to be destroyed.

On appeal from that conviction it was quashed. On such a state of facts how can damages be assessed?

Of course the respondents had no property in the goods and may well rejoice that one half of them got frozen as might be expected of such a quality.

But even if such neglect led to half of the goods being destroyed, I fail to see why, under proceedings in a replevin suit ending as this did, the court should assess the full value of the goods.

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Indeed to my mind there never was any room for such an award to respondents. Accidentally, or otherwise, the active appellant was sufficiently punished already.

I think, inasmuch as the courts dealing with the action did not see fit to make any assessment of damages, no other court can do so on a bond conditioned as this bond is.

In a penal action on a bond it is quite usual to give judgment for the penalty, and then assess the damages ensuing the breach.

I could conceive of that way of rectifying any legal wrong in other cases, but here, where he suing had nothing to suffer but costs, and they are paid, it seems to me the matter should have been allowed to rest, but if, instead of that, he brought such an action, it should have been dismissed.

I think this appeal should, therefore, be allowed with costs throughout, and the action dismissed.

I may be wrong in the foregoing view as to the dismissal of the action entirely (for which perhaps there is no direct authority, indeed there is no direct authority to meet the remarkable case that the respondents presented in bringing this action) but the English law may be found in Chitty's Archibald's Practice, 14th Ed. 1885, vol. 2, pages 1260 and following, and including 1264.

I cannot find any authority for Nova Scotia decisions differing from the line of cases set forth in said pages.

And if we turn to the work of Cobbey on Replevin which deals almost entirely with American decisions, there seems to be authority found in many States as to the consequences following an unsuccessful replevin action. These cases indicate that the practice is followed of having a replevin action accompanied with a replevin bond and, I would infer from references given us, that practically the same law as prevails in England and in many English provinces is, in its basic principles, identically the same, subject, however, to departure from the ancient English law as to the mode of dealing with a replevin bond.

The principles of replevin action and replevin bonds seem to be the same as the English law except the actual disposition of the assessment of damages, arising and recoverable under the bond in the case of a replevin plaintiff failing in his action.

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Of the many cases that I have referred to, the following seem instructive.

Little v. Bliss, 55 Kansas Reports, page 94; 39 Pacific Reports, page 1025; Crabbs v. Koontz et al, 13 Atlantic Reporter, page 591; 69 Maryland Reports, page 59; Stock-well v. Byrne, 22 Indiana Reports, page 6; Jones v. Smith et al., 79 Maine Reports, page 452; 10 Atlantic Reporter, page 256.

The last mentioned case perhaps is the most in point of any herein. It decides the question in that jurisdiction as to the right to recover damages where the defendant in replevin has no title, yet was held entitled to bring an action on the bond, but could not recover damages, except nominal ones.

The respondents herein have, I repeat, no title and never had any title to these goods, except the bare possession. In the Jones v. Smith case only nominal damages were allowed.