delivered the opinion of the court.
The question involved in this appeal is apparent from the statement prefixed to this opinion. That statement has been made in full detail in order that no factor in the situation might seem to have been overlooked. The question, shortly stated, is, were the sureties on the replevin bond foreclosed as to the extent of their liability^ in this suit by the alternative judgment against their principal in the replevin suit ?
It is urged in the negative by appellants that their liability in this action should be limited to the value of the interest in the goods replevied of George J. L. Janes as a partner in the firm of Janes Bros. & Co. If this contention of appellants is correct, there was error in the exclusion of evidence below which should cause the reversal of the judgment and the remandment of the cause. If not, this judgment should be affirmed. On the side or appellants’ contention are the considerations that the liability of sureties on replevin bonds, as well as on other bonds, is governed by rules strictissimi juris; that the letter of the condition of the bond says nothing of the payment of an alternative judgment under the statute in the replevin suit, but beyond the obligation to prosecute the suit and return the goods replevied, if return shall be awarded, binds the obligors only to pay all costs and damages occasioned by wrongfully suing out said writ of replevin ; that compensation for actual loss is the general and primary measure of damages ; and that the actual loss caused to the obligee in this case could be only the expenses of the suit and the value of the particular interest in the goods which had been levied on by the sheriff, up to but not necessarily equaling the amount for which the levy was made. These considerations are not without force, but on the other side, and in the opinion of the majority of the court outweighing them and justifying an affirmance of this judgment, is the peculiar provision of our Eeplevin Act, under which this alternative judgment was rendered, which makes us believe that in this enactment in connection with the rest of the Act, it was the legislative intention to allow the fixing or liquidating in the replevin suit itself, of the damages for a non-return of the goods replevied to one holding a lien on them for an ascertained amount of money, and further believe that this liquidation was intended in such case to be without reference to the value of the property so held and to bind equally with the principal himself the sureties who furnished the principal with the means of making the wrongful replevin. This construction does not seem to us inconsistent with j ustice, as appellants claim it to be. It certainly tends to shorten and simplify litigation. The sureties on a replevin bond, we think, contracting as they do, in view of the contemplated action of their principal in the prosecution of the replevin suit and in view of the statute, which declares what the liability of that principal shall be in case of an unsuccessful event in "his suit, may well be held to the hazard of his proceeding and to the same liability which its result fixes on him. Schott v. Youree, 142 Ill. 233-243. Moreover, we think that the language of this court and of the Supreme Court in the litigation out of which this judgment arose, tends to confirm this view of the rights of the parties, and that the Supreme Court of the United States has given weight of its authority to a view of the law of damages against the sureties on a replevin bond militating strongly against the contention of appellants.
To sustain the proposition that the language of the Act shows a legislative intention that the action of the court in giving the alternative judgment should be a liquidation of the damages for a breach of the bond by a non-return, it is, perhaps, impossible to add anything material to the language of the Act itself as quoted in the statement. That such a construction is consonant with justice and the rights of the parties, seems to us apparent for this reason.
The levy on a partner’s interest in partnership property by a sheriff, either by attachment or an execution, is made by his taking into corporeal possession the property itself. Newhall v. Buckingham, 14 Ill. 405; Freeman on Execu- ■ tions, secs. 125 and 254. If the partners who are not debtors desire to release this lien, they must, in the absence of statutory provisions giving some other remedy, proceed in equity to have an accounting and restrict the sale to the debtor’s interest (Newhall v. Buckingham, supra), or else pay the indebtedness. Even if there be statutory remedies in the nature of provisions for forthcoming bonds, or other expedients for avoiding the inconvenience of a continued holding of the property under seizure by attachment, they are always predicated on sufficient security to pay the judgment which may be obtained against the debtor. Why should an entirely unauthorized and improper proceeding on the part of the partner—one in which he takes the part of a mere trespasser, as this court in Janes v. Gilbert, 68 Ill. App., 611, says that Ernest H. Janes did in this matter—be so treated as to make it an easier and more efficacious method of disposing of the lien than the duly authorized and proper proceeding would be ?
The value of the property—-the corporeal res—to be replevied, determines under the statute the amount of the bond to be given when the replevin is made. The breach of the bond is the failure to return that property. What reason in justice is there that damages for that failure should not be liquidated by the statute at the amount for which the property was rightfully held? To determine them twelve years afterwards on a suit on the bond, as in, the present case the appellants insist must be done, would be no easy task, and the attempt no more likely to result in their accurate adjustment than to adopt as their measure the amount for which the property was rightfully held. The likelihood, indeed, would be the other way. Had these goods-not been taken from the sheriff, the going concern which owned them; whether it were solvent or insolvent, would probably to release them, have paid the just debt of the partner who had an interest in them, and charged it to him. Practically, even if not theoretically, the amount of the actual damage to the beneficial plaintiff in this suit by this improper replevin, was just the amount which the judgment below gives him.
The plaintiff in the suit and the principal in the writ has always, by obeying the order of return, a way open to avoid the necessity of paying more than the value of the replevied property, or more than the value of that interest in it which is liable for the debt. But appellants say that the construction we put on the statute necessarily works injustice if, as in the present case, some unforeseen catastrophe destroys the chattels and renders the return impossible. This does not so appear to us. If the plaintiff in the replevin chooses by an improper and unfounded action, such as this replevin suit has been adjudicated to be, to take from the sheriff goods many times in value the amount of the debt, in which goods the interest of the debtor is then undetermined, it is but just that the risk of their continued and unimpaired existence during his holding should be his and his bondsmen’s—at least up to the full amount of the sheriff’s lien. He has the care of the goods, he can insure them, he ought not to have touched them under the process he invoked. He is a xvrongdoer db initio. The sheriff should be and is, in such a case, relieved from any care in the preservation of the goods, and the man who has wrongfully taken them could justly enough be held to be an insurer of their existence until their return is ordered and accomplished. But he and his bondsmen are only held, under our statute and the construction we are giving it, to the amount of the alternative judgment. It would seem that the provision for this alternative judgment was inserted entirely for the benefit of the replevinor —to allow a third party to test the liability of goods levied on to attachment or execution, against a given debtor, and if unsuccessful, to escape with no greater penalty than the payment of the debt for which the levy was made, although the goods might have been destroyed in the meanwhile. Ordinarily, the provision would enure to the benefit of persons standing in the position of the defendant’s principal in this case. Where it does not, we think the greater liability is one created by the replevin act both against him and the bondsmen made by it necessary before the plaintiff can secure the execution of his writ.
The cases cited by appellants are not, as we view it, in point. That in Massachusetts it has been frequently held that “ the bond stands in the place of the property,” and that for a refusal to return the replevied property, while judgment must be for the penalty, execution can only be for that part of the penalty shown by the plaintiff to be due and payable,—-is true; but this does not affect the question whether the alternative judgment' formally rendered under the statutes of this state against the principal in the bond, in default of his return of the goods, is not the part of the penalty “thus shown to be due and payable.” The judgment here is for $40,000; the amount “thus shown due and payable” is $2,280.40. In the absence of this provision for an alternative judgment, or of the rendition of such a judgment in this case, the Massachusetts cases cited by appellants would be in point, but whether they would be controlling, in view of the holding of the II. S. Supreme Court in Sweeney v. Lomme, 22 Wall.208, “that the liability of the sureties in a replevin bond is not to be measured by the value of the interest in the property of the attachment debtor for whose debt it was seized by the sheriff, ” but “ that the value of the property at the time it was replevied, limited by the debt still due on the attaching creditor’s judgment and the penalty of the replevin bond, are the elements of ascertaining the damages in the suit on that bond,”—may well be doubted.
We are confirmed, as before suggested, in our view of this case by the implications from the language of the Appellate Court in Janes v. Gilbert, 68 Ill. App. 611, and of the Supreme Court in Janes v. Gilbert, 168 Ill. 627. In both these courts the principal of the bond sued on here claimed that the alternative judgment which was entered against him in accordance with the statute was too large, and that such a judgment should not in any case exceed in amount the value of his brother’s interest in the property. In both courts this claim was disallowed, and it was said that the principal’s duty was, under the statute, plain—to return the property or pay the amount for which it was held.
Despite the argument of appellants that Ernest H. Janes might have successfully maintained a bill in equity to restrain the execution on this judgment, we think there was no such method or any other open to him, after the decision of the Supreme Court, to avoid the liability placed on him by the judgment of the Superior Court in the replevin suit. The only question left open was whether the sureties on his replevin bond shared that liability. We think they did.
The judgment of the Superior Court will be affirmed.
Affirmed.