¶1(dissenting). In Overland-Texarkana Co. vs. Bickley et al., 1 La. App. 699, an automobile .had been released from seizure under a bond given under the provisions of article 280 of the Code of Practice, and, with reference to the liability of the principal and surety on the bond for depreciation in the value of the car, it was said:
“In allowing the defendant to bond property seized in his possession, the law merely acts on the necessity of the case'. It is not practicable to determine on the’ instant the question of right, so the status quo is preserved by leaving the disputed object with the possessor until in the regular course that question can be determined. But no right is thereby conferred on the possessor to make any use of the property to which he was not otherwise entitled. If he has not this right already the law does not give it to him, nor could it constitutionally give anyone the right to use another’s property. The constitution forbids the taking or damaging of property except for public purpose upon compensation previously paid. We think, also, that the obligation faithfully to restore a good car is not fulfilled by restoring one the value of which has almost been destroyed by use. … The argument that the car would have suffered depreciation if not used but stored affords no reason to release defendants from liability. Their liability results from the fact of bonding and thereby depriving plaintiff of the benefit of its property. If they had not bonded it plaintiff could have done so and in that event it and not Bickley would have enjoyed it while it was serviceable. We do not think that the reduction in price of cars of the kind in question pending the litigation can inure to the benefit of defendants. The right of plaintiff and the corresponding duty of defendants must be determined on the basis of things as they existed on the day the car was seized. It is true it was not and because of the law’s delays, could not be determined until long afterwards what this right and duty were bet when determined the judgment related back to the beginning of the litigation and amounted in effect to a decision that plaintiff had been throughout the owner and entitled to possession of the car. If the possession to which it had a right had not been withheld from it plaintiff could have realized the then value in such way as it pleased.”
¶2And the writer is of the opinion that the general principle recognized in that decision was that, under article 280 of the Code of Practice, the principal and surety on the release bond are obligated to restore the property in the same condition as it was at the time the bond was given, and were liable under the bond for depreciation of the value of the property, and, considering that the suit in which the bond was given involved the question of ownership, the conclusion is, I think, supported *321by the great weight of authority in other jurisdictions.
“It is the general rule that where property has been taken in replevin, to comply with the alternative judgment for its return, it must be returned in substantially the same condition as when taken, and without deterioration in value. The party for whose benefit the delivery or redelivery bond is given, under which his property is withheld from him, upon judgment being rendered in his favor for the recovery of the property, or in the alternative for its total value determined by such judgment … may elect to accept tender of the property, though depreciated in value, and sue upon the bond for his damages, measured by its depreciated value, etc.” 23 R. C. L. “Replevin,” par. 68; also par. 76; also Washington Ice Co. vs. Webster, 125 U. S. 426, 8 S. Ct. 947, 31 L. Ed. 799; Fair vs. Bank, 69 Kan. 353, 76 P. 847, 105 Am. St. Rep. 168, 2 Ann. Cas. 960.
¶3Considering that in the present case the release bond was given in an action in which the issue was the ownership of the property sequestered, as in OverlandTexarkana Company vs. Bickley, I think the principle announced in that case supports the -judgment appealed from, unless it may be said that depreciation in the value of property, resulting from deterioration due to the inherent nature of the pronerty and decrease or fall in the market price of the property, is not a loss or damage for which recovery may be had in an action on the release bond.
¶4The law, article 279 of the Code of Practice, under which the bond was permitted to be given, provides that “defendant against whom a mandate of sequestration has been obtained, except in cases of failure, may have the same set aside by executing his obligation in favor of the sheriff, with one good and solvent surety, for whatever amount the judge may determine, as being equal to the value of the property to be left in his possession,” and while the surety in signing the bond must have contemplated that his liability was restricted to the amount of the bond, or the value of the property as fixed, by the.judge, he must have also contemplated that the amount of the -bond covered any damage to the property, or depreciation in its value, while in the possession of defendant, and could not complain of being held for such damage or depreciation in the value of the property not exceeding the amount of the bond, and I do not see any reason why the surety and principal on the bond should not be liable unless defendant was vested with the right of possession under the bond, which, for the reasons stated in .the Overland-Texarkana Co. vs. Bickley, supra, I do not think was the case. I, therefore, respectfully dissent.