A statutory action for the recovery of personal property in specie was instituted by Ernst Brothers against appellee. The requisite affidavit having been made, and bond given, the property was seized by the sheriff, under an order for that purpose. Appellee having failed to give a replevin bond within the time prescribed, Ernst Brothers executed bond, and took possession of the property. In con.sequence of the subsequent dismissal of the suit, and the failure to restore possession of the property to appellee, he brings the present action upon their replevin bond.
The statute provides: “That in all actions for the recovery of specific property, in any of the courts in this State, when the property sued for is in the possession of the plaintiff at the termination of the cause, and said cause is dismissed, on motion of either party, or on plea in abatement, it shall be the duty of the court trying the same, forthwith to impanel a jury to assess the alternate value of the property, and also *505the value of the hire or use thereof; and it shall be the duty of the court tryiug the same, to render judgment against the plaintiff, and in favor of the defendant, for such property or its alternate value, with damages for the use or hire thereof, assessed by the jury.” — Acts 1886-87, p. 131. It is contended that, unless the defendant in the action asks or obtains, on the dismissal of the suit, the summary judgment provided by the statute, he must rely on the bond given by the plaintiff in the action at its commencement to obtain an order of seizure, and can not resort to the replevin bond. Counsel cite and rely on Phillips v. Waterhouse, 40 Mich. 273, in which it was held, that under the statute of that State, an execution in the action is required to fix liability on the replevin bond. By reference to the statute of Michigan, we find it contains an express provision, that if any writ of return, or other execution, issued in favor of the defendant in the action, shall be returned unsatisfied, he may have an action on the bond executed by the plaintiff. — How. Anno. Stat. § 8352. Our statute contains no such provision. Section 2719 of Code 1886 provides, that if, in an action of detinue, the jury find for the defendant, they must assess the value of the property, and, if in the possession of the plaintiff, assess damages for its detention; and judgment must be against the plaintiff, for the property or its alternate value, with damages for its detention. This statute was considered and construed in Wood v. Coman, 56 Ala. 283.
After a full review of the authorities, and consideration of the question involved, the court ruled, that, as there is nothing in the statute which confines the parties to the statutory remedy provided, they may invoke such remedy, or sue on the bond, at their election. The legislature having enacted, subsequently, a statute substantially extending the provisions of section 2719 to cases of dismissal of the detinue suit, on motion or plea in abatement, without the use of any words indicating an intention to confine the parties to the statutory remedy, we must infer that they intended that the statute should receive the same construction, which had previously been placed on that section: The summary judgment is not requisite to the right of the plaintiff to maintain the suit. If such judgment had been obtained, there would have been no necessity of a suit on the bond.
2. The main point of contention is, whether the defendants, having dismissed their detinue suit, can in this action set up ownership of the -property, either as a full defense, *506or in mitigation of damages. The condition of the bond is, that Ernst Brothers shall deliver the property to the defendant in the detinue suit, the plaintiff in the present suit, within thirty days after judgment, and pay damages for its detention and costs of suit, in case they fail to recover the same in the -action of detinue. Appellee insists, that inasmuch as the condition was broken on failure to return the property within the thirty days after the judgment of dismissal, the liability of the obligors in the bond became absolute; and as the purpose of the statute, authorizing a plaintiff in detinue to give bond and take possession of the property, is to secure its restoration to the possession of the defendant, in case the plaintiff fails in the suit, the plaintiff here is entitled, in an action on the bond, to recover the value of the property, as the measure of compensation for the failure to restore possession. In support of the contention, counsel cite and rely on the several' cases in which it has been held, that when the liability of the bondsmen, on a bond given for the forthcoming of property attached, or levied on under execution, has become fixed by demand, and indorsement of the bond “forfeited,” they are estopped from denying the liability of the property to the process, and from setting up any adversary claim. — Roswald v. Hobbie, 85 Ala. 78. In such case, execution may be issued on the bond, against the principal and sureties. ' No execution can be issued on the replevin bond given by the plaintiff in detinue, if unsuccessful, unless the alternate value and damages for detention have been assessed, judgment rendered therefor, and the sheriff has returned on the bond the fact of failure to deliver the property. — Code, 1886, § 2721. The principle settled by the decisions referred to, is only applicable when such proceedings have been had. But the condition of the bond having been broken, plaintiff is entitled to recover, at least, nominal damages, and defendants can not set up their ownership as a bar to the action.
The admissibility of proof of ownership, for the purpose of mitigating the damages, depends on very different principles — on the consequences of the judgment in the detinue suit. The general rule is, if the right and title to the property is adjudicated and determined in the action, all such questions are regarded as finally settled, and the obligors in the replevin bond, given by the plaintiff, are estopped from setting up, in a subsequent suit thereon, title to the property for but, if not determined and *507may show ownership in mitigation of damages. — Pearl v. Garlock, 1 Amer. St. Rep. 603; Wells on Replevin, §§ 447, 448. The judgment of dismissal in the action of detinue was not a judgment on the merits, and, not having been followed by the summary judgment provided by the statute, did not settle the right and title to the property. It determined the right of the defendant in the suit to have the property restored to his possession; but this is the only consequence. '
This question was presented and decided in Savage v. Gunter, 32 Ala. 467. In that case, the suit was on a replevin bond given by the plaintiffs in the action of detinue, with substantially the same condition as the bond on which the present action is founded. They took a voluntary non-suit. In the suit on the replevin bond, the trial court refused to allow the defendant to prove, even in mitigation of damages, that the property belonged to the plaintiffs in the detinue suit. It was held, that a voluntary non-suit by the plaintiffs, and failure to deliver the property according to the stipulation of the bond, constituted a breach of the condition, and estopped the obligors from asserting ownership as a bar to the action; but that proof of ownership was admissible in mitigation of damages. Had the plaintiff obtained, in the detinue suit, the summary judgment against the plaintiffs therein, authorized by the statute, it would have been conclusive on the question of ownership, and on the return of the sheriff of the failure to deliver the property, the bond would have had the force and effect of a judgment upon which execution could have issued. But, when the plaintiff, by reason of not having obtained such judgment, was compelled to resort to a suit on the replevin bond as a common-law bond, the amount of recovery only extends to the legal damages caused by the breach of the bond. If the property belonged to Ernst Brothers, and the plaintiff had merely a possessory interest, he is entitled to recover the damage done to such interest by the failure to deliver the property, but not its full value. Evidence as to the ownership should have been'received.
3. The demurrer to the pleas in abatement was properly sustained. — Minniece v. Jeter, 65 Ala. 222.
Reversed and remanded.