The trial court properly admitted evidence to prove, in mitigation of damages, that the title to the goods in question was, at the time of their attachment, in Lemenski, the plaintiff in the replevin suit.
The condition of a replevin bond is broken if the plaintiff fails to prosecute his suit to effect; this failure happens when, upon trial, he fails to prove his title; when his writ is abated; when he suffers a nonsuit; when he withdraws Ms suit; when he neglects to return Ms writ. In all these cases, unless the last, the court is authorized by statute to render a judgment de retorno and for costs. Persse v. Watrous, 30 Conn. 139, 148. Such judgment is based upon a judicial finding that the plaintiff in replevin has failed to prosecute Ms suit to effect, and is conclusive upon that fact. In Orms*609bee v. Davis, 16 Conn. 567, the defendant in a suit on the replevin bond pleaded, in bar to the action, ownership of the attached property in the plaintiff in the replevin suit; and the court held that the plea was insufficient; that it impliedly admitted the allegations of the declaration that the writ of replevin had been withdrawn by the plaintiff therein and the judgment de retorno rendered; and that this judgment was conclusive as to a cause of action in the suit on the bond. But the court says (p. 575) that the judgment could not estop the defendant from proving title in the replevin plaintiff, if such proof were material, unless the title had been put in issue and adjudicated in the former trial; and this is elementary law.
In a suit on a replevin bond the plaintiff must not only prove his cause of action, i. e. a breach of the condition to prosecute the replevin suit to effect (and upon this question a judgment de retorno is conclusive), but he must also prove his actual damage; if he has not been damnified in fact, he can recover only nominal damages. Upon this question of damage the ownership of the property replevied may be material, and if so, may be proved by the defendant. Jackson v. Emmons, 59 Conn. 493. The defendant cannot be estopped from producing such evidence by any judgment, unless it be one rendered in an action between the same parties, wherein the fact sought to be proved, i. e. the title to the property, was in issue and adjudicated. The judgment for a return of the property authorized by statute to be rendered upon the withdrawal of a replevin suit, cannot involve any adjudication of the title.
The other claim that the court erred in admitting the copy of the inventory of the insolvent estate, is without merit.
There is no error in the judgment of the Court of Common Pleas.
In this opinion the other judges concurred.