Argument for the defendant in error.

2. The bond was to return the property and fulfil the judg ment. When the property was returned and the party paid the costs awarded, the judgment was in all things fulfilled, and the bond fully satisfied.*

If the party had so chosen he could have had a bond conditioned not only for the return, but for a return in like good condition and order, and this form is frequently used. In Maryland, under the statute of 1785, and in the District where the Maryland statute prevails, the form is not used. The omission of this further condition materially changes the character of the obligation. †

The action of replevin is the usual mode of trying the right to personal property, and the bond which is given should not, under any form of condition, subject the obligor to damages for the ordinary wear and tear the property is subject to.

The case in short is this: The plaintiff is the obligee of a bond conditioned for the return of certain specified goods; he brings his action on this obligation, averring that the obligor did not return the property. The defendant pleads that this specified property was seized by the marshal on a writ which the plaintiff caused to be served on him. To this there is a replication which admits all these facts, but avers that the plaintiff refused their acceptance because they were of less value than when they were delivered to defendant. This is a departure in point of fact as well as of law. A new fact is introduced; the deterioration of the goods, not mentioned in the bond or declaration, and a new obligation in law is founded upon it. The case, therefore, tried, and on which judgment was rendered, finds no support in the obligation sued on, nor in the averment of the declaration. Judgment should accordingly be reversed.

Messrs. W. S. Cox and J. H. Bradley, contra:

It is contended that the marshal's seizure either was a satisfaction of the writ, or can be pleaded as a performance

* Stevens v. Tuite, 104 Massachusetts, 836.

† Parker v. Simonds, 8 Metcalf, 205.

Stephens on Pleading, 354.

Argument for the defendant in error.

of the condition of the return bond. The only case cited to sustain this position is that of Carrico v. Taylor. That case holds, that upon the sheriff's seizure, under a writ de retorno habendo, the sheriff's possession is the possession of the plaintiff, and the condition of the delivery bond is substantially complied with. This is by analogy to the case of a seizure under a fi. fa. The old rule was expressed to be that the seizure of sufficient personal property was a satisfaction of the debt, and it is only on similar ground that a seizure by the sheriff under a retorno habendo can be treated as a delivery or satisfaction. The case is clearly wrong, however, in treating the seizure as a delivery by the defendant. If the facts offered a defence at all, they do so only on the ground of a satisfaction of the writ or judgment. But the modern authorities declare, that a mere seizure or levy under a writ is a satisfaction only sub modo, or, conditionally, and does not become such, if the possession be afterwards surrendered.*

In this case it appears that the property was relinquished to the defendant by the marshal, and has been in his possession ever since.

Independently of this, the plaintiff had a right to refuse to accept the plants in a damaged and deteriorated condition. The value of a greenhouse full of valuable plants, japonicas, &c., is great if the plants be alive and vigorous. In that condition these plants, we must presume, were seized. But if they are suffered to die while in the defendant's pos session, though in one sense they are still the same plants, in another they are not. The defendant was bound to return the plants in the same good condition as wheu received by him.t

* Sasscer v. Walker, 5 Gill & Johnson, 102; Stone v. Tucker, 2 Bailey, 495; Duncan v. Harris, 17 Sergeant & Bawle, 436; Barker v. Wendell, 12 New Hampshire, 119; Green v. Burke, 23 Wendell, 490; Lynch v. Pressley, 8 Georgia, 327; Williams v. Gartrell, 4 Greene (Iowa), 287; Campbell v. Booth, 8 Maryland, 107; United States v. Dashiell, 4 Wallace, 182.

† Parker v. Simmons, 8 Metcalf, 205; Young v. Willet, 8 Bosworth (N. Y.), 486; Suydam v. Jenkins, 3 Sanford's Superior Court, 614; Brizsee v Maybee, 21 Wendell, 144; Schuyler v. Sylvester, 4 Dutcher, 488.

Opinion of the court.

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.

The exceptions taken by the defendant are all well taken. The central and controlling question in the case is the effect of the seizure of the property by the marshal, and its tender to the plaintiff. He sued out the writ. It went into the hands of the marshal by his procurement. He was the actor in causing its issuance and service. The marshal acted for him. He cannot be permitted to play fast and loose with the process he invoked. The marshal's possession was his possession. As soon as it was taken the efficacy of the bond touching the return of the property was at an end. The bond stipulated for the return of the property and nothing more in relation to it. We cannot interpolate what the contract does not contain.

Our duty is to execute it as we find

it, and not to make a new one.

The seizure and tender satisfied the judgment of return and the defendant's obligation.* Neither could be revived by the plaintiff's refusal to receive the property. The refusal was of no legal consequence.

If the defendant injured the property, or culpably suffered it to become injured while it was in his possession, a remedy must be sought in some other appropriate proceeding. It cannot be had in a suit on the bond.

If no writ de retorno habendo had issued it would have been the duty of the defendant to seek the plaintiff and deliver the property to him if he would receive it. Had the defendant failed to do this, there would have been a breach of the bond and he would have been liable. The action taken by the plaintiff obviated the necessity of his doing anything in that way.

The judgment is REVERSED, and the case remanded with directions to issue a venire de noro, and proceed

IN CONFORMITY TO THIS OPINION.

* Carrico v. Taylor, 3 Dana, 33.

Statement of the case.

COOPER & Co. v. COATES & Co.

1. The statute of Illinois, which in trials of actions by or against partners on contracts, dispenses, in the first instance, with the necessity of proof of the partnership, applies to a case where the declaration beginning thus:

“A., B., and C., trading as A. & Co., complain of D., E., and F., trading as D. & Co., "

then goes on referring, throughout, to the parties respectively, as "the said plaintiffs" and "the said defendants." The designation of the parties, as partners, in the opening of the declaration, is not a simple designatio personarum, and surplusage; but amounts to an averment that they contracted as partners.

2. In a suit for goods sold, when a witness proves by testimony not competent that they have been delivered, the reception of his testimony is not ground for reversal where competent prima facie evidence, wholly uncontradicted, and therefore conclusive, has also been given of the deliv ery. The defendant in such case suffers nothing by the incompetent testimony.

8. A bill of lading for goods sent to a purchaser, and not objected to by him, amounts to a liquidation of an account within the statute of Illinois, giving interest on "liquidating accounts between the parties and ascertaining the balance," there being no other transaction between the parties.

4. And a draft drawn for the price of goods sold and delivered is equivalent to a demand of payment, and, there being no proof of credit, and the bill having been received without objection, equally brings the case within the statute, which gives interest on money due and "withheld by unreasonable and vexatious delay."

ERROR to the Circuit Court for the Northern District of Illinois; the case being thus:

A statute of Illinois, relating to evidence in certain cases,* enacts as follows:

"§ 11. In trials of actions upon contracts, express or implied, where the action is brought by partners, or by joint payees or obligees, it shall not be necessary for the plaintiff, in order to maintain any such action, to prove the copartnership of the individuals named in such action, or to prove the Christian or surnames of such partners, or joint payees, or obligees; but the

* 1 Gross's Statutes, 270.

Statement of the case.

names of such copartners, joint payees, or obligees, shall be presumed to be set forth in the declaration, petition, or bill; Provided," &c.

"§ 12. In actions upon contracts, express or implied, against two or more defendants, alleged to have been made or executed by such defendants as partners, or joint obligors, or payors proof of the joint liability or partnership of the defendants, or their Christian or surnames, shall not, in the first instance, be required to entitle the plaintiff to judgment, unless," &c.

Another statute-one on the subject of interest-and which fixes interest in Illinois at six per cent., prescribes the cases in which creditors shall be allowed to receive interest. This statute allows them to have it, among other

cases

"On money due on the settlement of accounts from the day of liquidating accounts between the parties and ascertaining the balance; . . . and on money withheld by an unreasonable and vexatious delay."

Both these statutes being in force, Charles Coates and others brought assumpsit against Charles Cooper and others, to recover the amount of five different bills of iron, weighing different weights, and alleged to have been sold and delivered on different days in January and February, 1870, by the plaintiffs, of Baltimore, Maryland, to the defendants, of Mount Vernon, Ohio.

The declaration began thus:

"Charles Coates, George Coates, and Pennock Coates, trading as Coates & Brothers, plaintiffs, in this suit, who are citizens of the State of Maryland, complain of Charles Cooper, George Rogers, and C. G. Cooper, who are citizens of the State of Ohio, copartners, doing business as C. & G. Cooper & Co., defendants, who were summoned, &c., of a plea of trespass on the case upon promises.

"For that, whereas, the said defendants on, to wit, the first day of May, 1870, at Baltimore, to wit, at Chicago, in the district aforesaid, were indebted to the plaintiffs in the sum of $5000," &c.