
    Melvin vs. Winslow & als.
    
    A. B. attached certain property including' a horse. C. D. replevied it, but ultimately failed in his action, and judgment was rendered for a return, damages and costs. All the property was accordingly returned, except the horse, which, during the pendency of the two suits, died, without the fault or negligence of any one. Held, in a suit on the replevin bond, that C. D. was not liable for the value of the horse.
    This action, which was debt on a replevin bond was, submitted for the decision of the Court, upon the following agreed statement of facts.
    The plaintiff as a deputy-sheriff, having in his hands a writ against Moses B. Gilman, in favour of one Clancey, attached certain personal property including a horse, estimated to be worth $60. In July, 1828, the defendant replevied the property attached, and gave the bond declared on. The replevin writ was entered and prosecuted to final judgment, which was rendered in this Court, October, 1829, in favour of the present plaintiff for a return of the property, and damages assessed for the detention, at $31, 87, and costs of suit.
    In December, 1828, Clancey, at whose suit the goods replevied had been attached, recovered judgment in his suit against Gilman, for $350, 65. The execution which issued thereon was put into the hands of an officer, who received from the defendants all the property originally attached except the horse aforesaid ; and on the 24fA of November, 1829, sold the same ; but the proceeds were insufficient to satisfy the execution by the sum of $250.
    Some months prior to the rendition of judgment in the suit, Clancey v. Gilman, and while the replevin suit was also pending, the horse died without the fault or negligence of any one.
    The right of the plaintiff to recover the $31, 87, and costs, was not resisted, but the question was, whether the defendants were liable on the bond for the value of the horse.
    
      Otis, for the plaintiff,
    contended that the loss of the horse should fall on the defendants. They were wrongdoers in intermeddling with property to which they had no right. Pike v. Huckins, 1 Mass. 420; Seavey v. Blacklin Sf al. 2 Mass. 541 ; Flagg v. Tyler, 3 Mass. 303.
    The horse was at their risk. Their bond is to return him at all events. The loss therefore, is their loss. Gordon v. Jenney, 16 Mass. 465 ; Ladd v. North, 2 Mass. 214.
    
      Sprague, for the defendants.
   The opinion of the Court was delivered by

Mellen C. J.

It appears that the horse in question died a natural death, without the fault or negligence of any one, after he was attached at the suit of Clancey, and before the action was decided; but not till after the action of replevin was commenced. The question is, whether, according to the true com struction of the condition of the replevin bond, the obligors are answerable for the value of the horse. By law, Melvin, the officer who served the writ in Clancey’s action, had an unquestioned right to attach the horse and hold him in his custody, until he was taken from his custody by virtue of the writ of replevin. Suppose he had died in the possession and custody of Melvin, before the action of replevin was commenced, would he have been answerable? We are not aware of any principle of law which would render him so. He was answerable for him, to be seised on execution; but if he had died before execution issued, the plaintiff would not have been liable, unless he had been in fault. Now, had not the defendant, Winslow, as good and legal right to take the horse by the writ of replevin, out of the custody of Melvin, in order to try his right to the property, as Melvin had to take him out of the possession of Gil-man towards satisfaction of Clancey’s debt ? We perceive no distinction. In loth cases, the act of taking was lawful. And though, when the action was .decided against Winslow, the law considers him so far a wrongdoer as to compel him to pay damages, yet till that time he was not a wrongdoer, but lawfully engaged in vindicating his asserted rights; and, as we have before stated, the horse died before the replevin suit was determined. In the case of Congdon v. Cooper, 15 Mass. 10, it was stated expressly by the Chief Justice, delivering the opinion of the Court, that the capture of Eastport, where the deputy- sheriff lived, and where, according to his duty, the property attached would be presumed to remain, would excuse him and the sheriff from producing the property, to levy the execution c: upon. But this is because the common consequences of capture, according to the laws of war, are supposed to fol- “ low : such as a restraint upon the persons of the inhabitants captured, which would prevent their removal; and upon their “ effects, so that they could not be withdrawn from the control “ of the captors.” He then goes on and states, that such was not, at the time, the situation of Eastport and the property there : and the sheriff was in that case held answerable. He had taken good security for them. Surely the natural death of the horse, which withdrew him from the control of Winslow, is as valid an excuse for him, as the absolute control of a captor would have been for Cooper and his deputy. Our opinion is, that the obligors are not held for the value of the horse.  