GINACA v. ATWOOD, 8 Cal. 446

Field, J., after stating the facts, delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring. The undertaking was, among other things, for the return of the property takep ‘in the original replevin-suit, if a return should be adjudged by the Court. Such return was adjudged, and yet such return was not fully, but only partially made.

To the extent, then, in which the conditions of the undertaking have not been complied with, the defendants are liable It is for damages arising from a failure to return the property that the action will lie, not for damages for the original taking and detention) these latter should have been found in the replevin-suit; not having been so, they cannot be recovered of the sureties.

The undertaking was for the payment of such sum as should for any cause be recovered against the plaintiff in that suit; no sum beyond the costs was recovered, and it follows that the liability of the sureties is limited to that extent, and such damages as may have arisen from a failure to return the entire property.

Section one hundred and seventy-seven of the Practice Act applies only where the issues in the case have been submitted to and passed upon by the jury. It does not apply to a case of a judgment of nonsuit. The decision of this Court in Uickerson v. Chatterton and others, April Term, 1857, also, only applies to cases which have been submitted to a jury. The present case is like a judgment upon a discontinuance, in which no jury is called.

The facts which upon a trial by a jury would have been found in the original replevin-suit, are by such judgment left to the determination of the jury called in the suit on the undertaking, so far as the conditions of the undertaking will authorize an inquiry into them. It follows that the demurrer should have been overruled. Judgment reversed and cause remanded.