
    Kenley, et al. vs Commonwealth, for Henderson.
    Error to the Boyle Circuit.
    Covenant.
    
      Case 132.
    The ease stated.
    The liability of the obligor in the bond required by the statute, on sueing out a ■writ of replevin, is in case of failing to restore the property and pay the damages assessed in the action of replevin, costs, &c. not extra costs of attorney’s fees, &c.
    
      Bonds. Replevin. Damages.
    
    
      July 3.
   Chief Justice Ewing

delivered the opinion of the Court.

This is an action brought by the Commonwealth for the use of Henderson, against Hiram Kenley and his sureties, on a bond executed by them in an action of replevin prosecuted by Kenley against Henderson, for two slaves, under the statute of 1842, (3 Stat. Laws, 503,) in which action Kenley was nonsuited, and judgment rendéred for the return of the slaves and costs only; but no inquiry had or damages assessed for the injury sustained by reason of the action.

The Circuit Court instructed the jury, that the defendants were liable on said bond for reasonable hire of the slaves whilst retained by the plaintiffs in replevin, and also for a reasonable amount paid by the defendant to his attorneys, in the defence of said action; whereupon they found a verdict for the sanie, together with the costs, &c. and the defendants have appealed to this Court.

The condition of the bond sued on is precisely the condition prescribed by the 4th section of the statute referred to, which is “to prosecute the suit with effect, and without delay, and to return the property in case it shall be so awarded, and to pay all such damages as may be assessed against the plaintiff, and the costs of the suit, and keep harmlessihe officer,” &c.

The 9th section of the act provides the mode by which the damages sustained by a defendant in replevin may be assessed, and judgment rendered therefor, bpon the termination of the action unfavorably to the plaintiff. And to secure the damages thus asséssed, and no other, the condition of the bond was intended to provide. If no damages were assessed in the action, none can be recovered on the bond, as the condition provides for paying the damages assessed, and not damages that-were not assessed. No right of action accrues upon the bond until damages have been assessed. The default lies in failing to pay the damages assessed. If none vvere assessed, there can have been no breach of the condition of the bond in failing to pay, ■ which would authorize a suit on-the bond.

Kincaid for plaintiffs.: Harlan fy Craddock for defendant.

So much of.the instruction of the Circuit Court, thereifore, as authorized an inquiry into, and assessment of damages for hire of the slaves, and compensation -to attorneys for the defence,' which were not assessed on the trial 'of the replevin, was erroneous. The judgment of the Circuit Court is. therefore, -reversed, and cause remanded, that a new trial may be granted without the payment of costs  