¶1The report is imperfect in not stating or showing what questions arose in the superior court or were intended to be reported for the determination of this court.
¶2 Report dismissed.
¶3The case was tried again in the superior court at October term 1870, and a verdict returned for the plaintiff, before Rockwell, J., who allowed the following bill of exceptions:
¶4“ It appeared that the plaintiff, as deputy sheriff, had attached the replevied property in two actions of contract against John Quirk ; that after such attachments the same was replevied from him by Patrick Quirk; that judgments were recovered against John Quirk upon the suits in which said attachments were made, one for the sum of $244.12 and the other for $311.28 ; that, previously to the service of the replevin writ, the bond on which this action is brought was executed at Easthampton, by said Patrick and the other defendants, in the sum of $1000, and thence taken by the officer to Cummington, where the property was appraised by appraisers duly appointed by the officer, and then taken on the writ of replevin; that in said replevin judgment was obtained, by default, for a return of the replevied property; and that without making any demand for a return of the same, or suing out a writ of return, the plaintiff commenced this action against the principal and sureties on the bond. The defendants asked the judge to rule that the plaintiff could not maintain his action *47against the defendants till after a demand for return of the property. The judge declined so to rule, but ruled that the action could be maintained without first making such demand, or suing out a writ of return.
¶5“ The plaintiff offered in evidence the replevin bond, but introduced no other evidence of the value of the property. The defendants asked the judge to rule that, as no evidence of the value of the property had been introduced, the damages for failing to return it must be merely nominal. The judge declined so to rule, but ruled that the bond itself was evidence of the value of the property; that the bond, being in $1000, was evidence that the value of the property was $500, and was to be so taken, in the absence of any other evidence, in assessment of damages. The defendants then asked the judge to submit the question of the value of the property to the jury, to be ascertained by them; and he declined to do so.
¶6“ The defendants offered the officer’s return in the replevin action, and the appraisal, as evidence of the value of the property replevied ; but the judge excluded the evidence.”
¶7“ The defendants called the officer who served the replevin writ, and proposed to ask him the value of the property replevied, as an expert; but the judge refused to allow him to testify.
¶8“ The defendants offered in evidence the only summons served by the officer in the action on which the original attachment of said goods was made, [copies of which summons and of the officer’s return were annexed to the bill of exceptions,] as showing a defective service and false return in said original action, in which judgment was obtained by default. The plaintiff objected to this evidence; and the judge excluded it. The defendants asked the judge to rule that they were entitled to show that they sustained damage by reason of the false return of the plaintiff in said first action on which said goods were attached, and that such damages might be recouped in this adjustment; but the judge declined so to rule.”
¶9“ A verdict was taken under the direction of the judge for $500 as the value of the replevied property; $13.49 as costs of the replevin ; and 12 per cent, interest on the $500 from November 25, *481867, the date of the execution of the first suit against John Quirk i amounting in all to $688.29. To the above rulings and refusals to rule the defendants alleged exceptions,” which were argued at September term 1871.
¶10The bond in suit is in the form directed by statute, and required the plaintiff in replevin to return the property replevied in case such should be the final judgment. Gen. Sts. c. 143, §§ 3,12. Judgment having been given for a return, the failure of the plaintiff in replevin to return the property was a breach of the bond, and an action might be immediately brought upon it, without previous demand, or suing out a writ of return. Cook v. Lothrop, 18 Maine, 260. Parker v. Simonds, 8 Met. 205. The execution of the bond being admitted, and a breach being thus shown, the plaintiff in this action was entitled to judgment for the penalty of the bond. Gen. Sts. c. 133, § 10. Davis v. Harding, 3 Allen, 302. Leighton v. Brown, 98 Mass. 515.
¶11But execution should issue for so much only of the penal sum as was due and payable in equity and good conscience for breach of the condition; and either party had the right to have the assessment made by a jury. Gen. Sts. c. 133, § 10. The sum named in the bond was evidence, and, if uncontradicted, sufficient evidence, against the obligors, of the value of the property. Parker v. Simonds, 8 Met. 205. But it was not conclusive. Clap v. Guild, 8 Mass. 153. Mattoon v. Pearce, 12 Mass. 406, 408. The officer’s return and the appraisal in the action of replevin were not evidence of the value of the property against the defendant in replevin, now plaintiff, who had no part in procuring them to be made. Kafer v. Harlow, 5 Allen, 348. Leighton v. Brown, 98 Mass. 515. But any witness of competent knowledge might testify to the value of the property. Vandine v. Burpee, 13 Met. 288, 291. Commonwealth v. Dorsey, 103 Mass. 412, 419. The court having rejected such testimony, and refused to submit the question of the value of the property to the jury, the defend? ants’ exceptions must be sustained.
¶12*49The damages recovered by the officer upon the bond given on the replevin of the property attached would be held by him in trust, after payment of his own fees and expenses, for the benefit both of the attaching creditor and of his debtor. Gen. Sts. c. 143, § 15. Mattoon v. Pearce, 12 Mass. 406, 411. Damages against the officer personally for a false return on the writ in the original action could not be recouped or set off' against such damages. The evidence offered and the ruling requested upon this point were therefore rightly rejected. Exceptions sustained.