Statement of the case.

That unless a writ de retorno habendo (that is to say, for the return of the property claimed in the complaint) had been issued to the proper officer previous to the commencement of this action, then that the verdict should be for the defendants.

That the undertaking sued on fixed the value of the property replevied at $2500 at the time the same was replevied, and the jury could not fix the value thereof to be any greater

sum.

The court refused to give any one of these charges, though it did charge that the $1300 which Lomme had recovered on his suit from the Kintzings was to be deducted from what the jury might find.

The court charged that the plaintiff's damages should be assessed at such amount as the jury might find remained unsatisfied upon his judgment against the Kintzings, with interest, and his costs expended in Watson's suit against the sheriff, if they found that the value of the property replevied by and delivered to Watson at the time it was so delivered, and not returned to the sheriff or placed in subjection to the plaintiff's judgment against the Kintzings, was equal to the balance of the judgment and the amount of the costs; and if the property was not equal to the said balance and costs, that the jury should assess the plaintiff's damages at the amount they should find the said property was worth at the time of its delivery to Watson, and the amount of plaintiff's costs in Watson's suit against the sheriff, with interest on such amounts at ten per cent. per annum.

That the only question for the jury to determine was, whether possession of the property delivered to Watson was ever returned to Roberts, and to determine the value of the property so delivered to Watson and not so returned.

The jury found, November 10th, 1871, in favor of the plaintiff for $5000. The record as it came up to the court omitted to show, by the usual sort of entry, that judgment had been entered accordingly. However, there was in the record a notice by the defendant's counsel to the counsel of the plaintiffs, "that the defendants appealed to the Supreme

Opinion of the court.

Court of the Territory from the judgment made and entered in the District Court of the Territory, in favor of the plaintiff and against the defendants." And also an order by the Supreme Court of the Territory that the cause of Lomme v. Sweeney et al., "coming on for judgment on the appeal herein," it was ordered "that the judgment entered herein by order of the court below be affirmed with costs."

This the counsel of the plaintiffs in error had regarded as a sufficient evidence of the entry of a judgment for $5000 in the District Court, and an affirmance of it in the Supreme Court, and so brought the case here. The errors assigned

were:

1. That Lomme was allowed to sue in his own name.

2. That the verdict in the replevin suit was in violation of the provision in the Civil Practice Act, since it did not find the value of the property, and there was no alternative judgment for that value, or the return of the property. 3. That proper instruction had been refused.

4. That wrong ones had been given.

Mr. J. Hubley Ashton, for the plaintiffs in error, and Mr. Robert Leech, contra; the latter gentleman in his brief calling attention to the peculiar form of the evidence of the judgments in the District Court, which he suggested was no evidence of what judgment, if any, had been given; and Mr. Ashton informing the court that the peculiarity was due to a mere clerical error, that would be remedied by certiorari, if the court saw fit now to order one, and would suspend its judgment till one could issue and be returned. The court directed the argument to proceed, and a certiorari to issue.

[A certiorari having thus issued and been returned, showed the error to have been a mere clerical one, as alleged by Mr. Ashton.]

Mr. Justice MILLER delivered the opinion of the court. 1. The first error assigned and mainly relied on is that the bond on which the suit is brought having been given to the

Opinion of the court.

sheriff, this action cannot be maintained by Lomme, the party for whose benefit it was really given.

This question has been decided differently by different State courts under precisely the same code of practice.

In several of these it has been held that the real party in interest is always the proper plaintiff, while in others it is held that the suit must be brought by the obligor in the bond for the use of the party in interest.

Without expressing any opinion of our own on the question, we hold that as it is one which arises under their own code of practice, we should, in this conflict of authority, adopt the ruling of the Supreme Court of Montana in the consideration of it. This assignment of error is, therefore, not well taken.

2. The next objection is that the verdict in the replevin suit did not find the value of the property, and that there was no alternative judgment for that value or the return of the property.

On this question also conflicting authorities are produced as to what judgment should have been rendered under codes precisely similar to the Montana code in regard to actions of replevin. And in the case of Boley v. Griswold,* in a direct appeal, we have held that a judgment in replevin may be good though the alternatives are not expressed. But we are not now considering whether that judgment was erroneous or not. No writ of error to that judgment is pending in this court. As the jury found for the defendant, the sheriff, and the court rendered judgment for a return of the property to him in a suit in which it had jurisdiction to render that judgment, it is not void because it did not add something else which it might have added.

The undertaking of the plaintiffs in error was "for the prosecution of said action (of replevin), for the return of said property, if return thereof be adjudged, and for the payment to the said defendant of such sum as may from any cause be recovered against said plaintiffs." The judgment, there

* 20 Wallace, 486.

Opinion of the court.

fore, which is valid until reversed, established one of the conditions on which the plaintiffs in error agreed to be liable, and as the property was not returned, either by them or by Watson, they are liable to an action on their contract. 3. Nor do we think the court erred in refusing to instruct the jury that Lomme could only recover the value of the interest of the Kintzings in the property. This would have been to try the action of replevin over again. If Watson had no right to the property he had no business to interfere, and if he thought some person not yet before the court had a paramount interest in it he should have returned the property and left such person to assert his own rights. Having replevied the property and failed to establish his own right to it in the suit thus provoked by him, he is but a trespasser in holding possession afterwards.

4. Nor do we think that it was necessary that an execu tion should have been issued to retake the property under the judgment in the action of replevin before the liability of the plaintiffs in error in the replevin bond accrued. They undertook, themselves, in express terms, that they would be liable if a judgment for return of the property was had, and not on condition that it could not be had on execution. This question was before us in the recent case of Douglas v. Douglas,* in which it was held that the judgment of de retorno habendo rendered the party liable on a replevin bond.

5. The bill of exceptions shows that the goods, at the time they were replevied, were worth from $7000 to $10,000. The verdict of the jury was for $5000, the penalty of the bond. As there is nothing in the record to show that there was not due to Lomme on his judgment against the Kintzings, including interest and costs, and for the costs and expenses of defending the replevin suit, the sum of $5000, all these elements of damages being before the jury, we cannot say that the verdict was for too much or that the judgment rendered on it was erroneous.

6. A point was made in the defendant's brief that there

* 21 Wallace, 98.

Syllabus.

was no judgment found in the record, and an inspection of it showed that while the judgment of the Supreme Court of the Territory merely in terms affirmed the judgment of the District Court, the judgment of the District Court was not in the record, and, in fact, no judgment was to be found in the record which we could either reverse or affirm.

Under these circumstances, as the defendants in error had made no objection, by motion to dismiss the writ, or otherwise, before the hearing, the court heard the argument, and of its own motion gave the plaintiffs time to perfect the record by certiorari, if it could be done. The proper judg ment has since been certified to this court, and it is now

AFFIRMED.

BAILEY V. MAG WIRE, COLLECTOR.

1. A claim of exemption from county and municipal taxation cannot be supported, any more than a claim from State taxation, except upon language so strong as that, fairly interpreted, no room is left for controversy. No presumption can be made in favor of the exemption; and if there be reasonable doubt, the doubt is to be solved in favor of the State.

2. The fact that in an act amending the charter of a railroad corporation special provision is made for ascertaining the taxes to become due by the corporation to the State (nothing being said about the manner of ascertaining other taxes), is not of itself enough to work an exemption of the property of the corporation from all taxation not levied for State purposes. Silence, in regard to such other taxes, cannot be construed as a waiver of the right of the State to levy them. There must be something said affirmatively, and which is explicit enough to show clearly that the legislature intended to relieve the corporation from this part of the burdens borne by other real and personal property, before such an act shall amount to a contract not to levy them. 3. A provision in such an act, prescribing a mode for ascertaining the tax due the State, by which provision the president of the company is required to furnish to the auditor of the State a statement, under oath, of the actual cash value of the property to be taxed, on which the company is directed to pay the tax due the State, within a certain time, to the treasurer, under penalties, does not amount to a contract, that the State will not pass any law to assess the property of the company for taxation for State purposes in a different manner.