
    Morrill v. Daniel.
    Reeusviíí : Suretys liability on retaining bond.
    
    A surety on a defendant's; retaining bond in replevin is liable for tlie damages and costs of the suit, as weil as for die return of the property.
    APPEAL from Consvay Circuit Court.
    Hon. G, S. Cunningham, Circuit Judge.
    The Appellant pro se.
    
    'The bond was given under Section 304.2 Gcmtfs Digest, and its object was to secure the safe-keeping and return of .the. property. Drake At!., 3 ed.¿ sees. 330^331. The measure of damage on a delivery bond is the value of the property -secured by it. The property having been returned the liability of the security ceases. Th,, secs. 34.0-1 — 2.
    
      C. Armstrong~'<i\xá W, L. Moore for Appellee.
    The bond is that defendant will perform the judgment of the court. Mansf ■Dign sec. 3381. The addition “and return said property, etc.,” is'-surplusage winch does not .constitute a new condition nor restrict the legal effect of the bond. Drake Até., 6 ed., sec. 329. Plaintiff "had judgment for costs, aud the surety is liable. Mansf. Dig., sec. 1042.
    
   Cockrill, -C. J.

Daniel sued Bedinger in replevin before a justice of -the peace 'for-a mare. ' To retain possession of the mare Bedinger executed'the usual retaining bond, with Morrill as his surety, conditioned to “perform the judgment ef the court in this action, and return the property if a return is adjudged.” In the justice’s court there was judgment for Bedinger, but on appeal to the circuit court the judgment was for Daniel for tbe mare or her value and all costs. Thereupon the mare was delivered up by Bedinger, and. execution was issued against him for the costs and returned nulla bona. .This suit was then instituted before a justice of the peace, on the bond, against Bedinger, and Morrill, his surety, for the costs: Bed-’ inger was not served with process. Morrill defended, but on appeal to the circuit court judgment was rendered against him, and he appealed to this court.

The condition of the bond required of the defendant in replevin, to. obtain the release of property taken by the sheriff; is “ that the defendant shall perform the judgment of the court in the action.” This, is the language of the statute. Mansf. Dig., sec. Jf8i. The judgment of the com't, when in favor of the plaintiff, is for the return of the property or its value, with damages for the detention, (lbsec. JiSi,) and as the plaintiff recovering judgment in every case has a judgment for costs-against the defendant, (/&., sec. xofs,}- it follows that the surety upon such a bond is not exonerated by the delivery of the property merely, but is liable for the damages and costs as well. ■

Affirm.  