
    A. T. EASTMAN v. M. S. BARNES.
    
      Replevin Bond. Practice.
    
    
      1. When a replevin bond is conditioned only for a return of a part of the property, the suit should not be dismissed, except as to that for which no bond was given.
    2. The plaintiff in such case cannot remedy his mistake by filing a new bond.
    Replevin for a cow and calf. Heard on a motion to dismiss and motion to file a new bond, June Term, 1881, Orange County, Rowell, J., presiding. Motion to file new bond overruled;'motion to dismiss sustained.
    
      J. K. Darling, for the plaintiff,
    cited, R. L. s. 1232; Campbell v. Morey, 27 Vt. 575; Bennett v. Allen, 30 Yt. 681; Bent 
      v. Bent, 43 Yt. 42; Driscoll v. Place, 44 Yt. 252; Thurber v. Richmond, 46 Yt. 395; Clapp v. Guild, 8 Mass. 153; Mansir v. Crosby, 6 Gray, 334; Morse v. Hodson, 5 Mass. 314; Wilder v. Stafford, 30 Yt. 399; Tripp v. Howe, 45 Yt. 523.
    
      John H. Watson, for the defendant,
    cited Bennett v. Allen, 30 Yt. 684; Stoddard v. Gilman, 22 Yt. 568.
   The opinion of the court was delivered by

Taft, J.

Replevin for a cow and calf. The defendant moved to dismiss for the reason that the bond taken at the time the writ was served, and which was regular in all other respects, was conditioned for the return of the cow only. The fact that the calf was not mentioned in the bond did not render the bond null as to the cow; it was valid as to the latter, but void as to the calf. The bond being good as to part of the property, the suit should not have been dismissed, except as to that part for which no bond was given. The security taken by way of bond in replevin is a substitute for the property, and the defendant is entitled to such security at the time his property is taken; if he does not get it then, he never may; and the defect cannot be cured by filing a bond subsequently. The motion to file a new bond was properly denied.

Judgment reversed. Judgment for the return of the calf with damages to be assessed by the clerk, and cause remanded.  