and also for divers and sundry items of damages the plaintiffs assert they have sustained by reason of its detention. A demurrer to the complaint was sustained, and a judgment rendered in favor of the defendants, and the plaintiffs appeal. The material facts alleged are as follows: The defendant McNary and the Southern Pacific Company were joint defendants in an action brought by the plaintiffs to recover the possession of two certain lots of hops stored by McNary with the railroad company. The sheriff took possession of the hops under plaintiffs' order, but, before delivery to them, McNary, in order to obtain a return thereof, gave the sheriff a written undertaking, as provided in Section 137 of Hill's Ann. Laws, in double the value of the property, with the defendants Gray as sureties, conditioned that "said defendant shall redeliver said property to the above-named plaintiffs if delivery thereof be adjudged, and shall pay to said plaintiffs such sum as may for any cause be recovered against the defendant." It is alleged that the possession of the property was thereupon redelivered to McNary, but it is subsequently averted in the complaint that the Southern Pacific Company, after an unsuccessful application to have the replevin action dismissed as to it, on the ground that it had no interest in or claim to the hops except for storage, and was simply holding the possession thereof at the instance of McNary, filed a bill in equity in the nature of a bill of interpleader against the plaintiffs and McNary, alleging that it was in the possession of the property as a warehouse keeper; that there was a controversy between them respecting the ownership and right of possession; and asking that it be exonerated from any further liability upon delivering a proper warehouse receipt to the clerk of the court for whoever might be adjudged to be the owner of the hops. Both the plaintiffs and McNary answered the bill, and, after trial upon the pleadings and proof, it was decreed that the plaintiffs were the owners and en

titled to the possession of the property, but no judgment. was rendered against McNary for damages. The hops, which in the meantime had very much depreciated in value, were thereupon delivered to the plaintiffs.

Although the complaint alleges that the sheriff took possession of the property under the plaintiffs' order, and delivered it to McNary upon the execution and delivery of the undertaking on which this action was brought, yet it is quite apparent from the other allegations of the complaint that from the time the hops were stored with the railroad company by McNary they remained in the actual possession of the company as a warehouse keeper until the final termination of the suit, and were then delivered to the plaintiffs. It would seem, therefore, that McNary at no time obtained possession of the property under the redelivery bond, and that it never in fact accomplished its purpose. But, waiving this point, and assuming that the bond is a binding obligation, and that the decree was equivalent to a judgment in the action for possession of the hops, the demurrer to the complaint in this action was nevertheless properly sustained, because it appears affirmatively that there has been no breach of the bond. Its conditions are: (1) That McNary shall redeliver the property to the plaintiffs if a redelivery be adjudged, and (2) that he shall pay to them such sum of money as may for any cause be recovered against him. The property was promptly delivered to the plaintiffs as soon as it was decreed that they were entitled thereto; hence, the first condition of the bond was complied with. No sum whatever has been recovered against McNary on account of the redelivery of the property, and so there has been no breach of the latter clause in the bond. What is the true measure of damages in an action on an undertaking given in an action for possession of personal property, where there has been a breach thereof, and whether a recovery of damages can be had at all unless assessed in the original action,

are controverted questions: 2 Sutherland, Dam. (2 ed.), §§ 501, 502; Whitney v. Lehmer, 26 Ind, 503; Washington Ice Co. v. Webster, 125 U. S. 426 (8 Sup. Ct. 947, 31 L. Ed. 799). But the question of damages cannot arise until there is a breach of some condition of the bond which gives a right of action thereon. If, in this case, the property had not been returned to the plaintiffs, or if it had been returned in a damaged condition (as in Yelton v. Slinkard, 85 Ind. 190), and for either reason an action had been brought on the bond, the questions sought to be litigated herein might be pertinent. There was no breach of the bond, however; therefore no action can be had thereon: Thomas v. Irwin, 90 Ind. 557. The bond was not intended as a complete indemnity to the plaintiffs for all damages they might sustain by reason of the redelivery of the property, but was limited to such sum as might be adjudged against the principal of the bond. Before there is a breach of this condition, there must be a recovery against the principal, and a failure by him to pay. Whether such recovery should be in the original action is immaterial at this time, for there can be no action on the bond until there is a breach, and there is no breach in this respect until the defendant fails to pay a sum recovered against him. It is elementary that a surety cannot be held for what he did not undertake to perform, and no action can be maintained against him until there is a breach of his contract. The judgment of the court below is therefore affirmed. AFFIRMED.

Argued 25 April; decided 28 May; rehearing denied 13 August, 1900. MACKIN v. PORTLAND GAS COMPANY.

[49 L. R. A. 596; 61 Pac. 134; 62 Pac. 20.]

MANDAMUS AGAINST QUASI PUBLIC COMPANIES.

1. There is now no question of the right to compel by mandamus companies engaged in furnishing light, water or heat to the public to supply all persons along their conduits who comply or offer to comply with their reasonable rules and regulations: Haugen v. Albina Water Co., 21 Or. 411, followed.

GAS COMPANIES

RULES DISCONTINUING SERVICE.*

2. A rule of a gas company, consented to by the consumer, that it will cease to furnish gas when a consumer becomes delinquent in paying for gas already furnished, is a reasonable regulation.

IDEM.

3. Such a rule may be enforced by discontinuing the gas supply at one building until payment of a delinquent bill for gas previously furnished at another building.

RIGHT TO MANDAMUS TO OBTAIN GAS.

4. Before a writ of mandamus will issue the right thereto must clearly appear; thus, the writ will not issue to compel a gas company to furnish a consumer with light or heat pending the settlement of a disputed bill for gas previously furnished, whatever may be the rule as to enjoining the company from turning off the gas under the circumstances.

From Multnomah: ALFRED F. SEARS, JR., Judge.

same

Mandamus by Sam Mackin against the Portland Gas Company to compel the defendant company to supply the plaintiff with gas at his place of business, No. 107 Fourth Street, in the City of Portland. The alternative writ alleges, in substance, that the defendant is a corporation organized for the purpose of, and is now engaged in, supply

*NOTE. This case is reported in 51 Cent. Law Jour. 130, with a note: "Right of Gas Companies to Discontinue the Supply of Gas for Nonpayment of a Disputed Bill." See, also. a note on same subject in 14 L. R. A. 969; Tacoma Hotel Co. v. Tacoma Land & Water Co., 28 Am. St. Rep. 35.-REPORTER.

ing gas to the City of Portland and its inhabitants, and, under a franchise from the city, has mains laid in the streets for such purpose; that on September 27, 1899, the plaintiff, who was engaged in the business of conducting an oyster eating-house and restaurant at No. 107 Fourth Street, requested the company to furnish him gas, and, upon a deposit by him of seven dollars as security, the company made the proper connections with his premises and supplied gas to him; that on October 27 it presented its bill for gas consumed up to that time, amounting to $4.95, which the plaintiff paid; that plaintiff used gas from the twenty-seventh of October, until the eleventh of November, for which he is able, ready, and willing to pay upon the presentation of a bill therefor; that he is solvent, and able to satisfy any judg ment that the defendant may procure against him; that on the eleventh of November the defendant demanded payment of a delinquent gas bill of $5.25, which he refused to pay, whereupon it shut off the gas from his premises; that defendant's pretense for this action is that in the month of March, 1897, the plaintiff was engaged in business at No. 284 Morrison Street, and was using gas supplied by the company, but that on the sixteenth of the month he sold out, and notified the company that he no longer desired to be furnished with gas, and would not be responsible for any supplied thereafter, notwithstanding which it presented him a bill of $5.25, which he then and there and ever since has in good faith disputed and refused to pay; that at the time defendant threatened to discontinue his gas at No. 107 Fourth Street he offered to deposit sufficient money in court to answer any judgment that it might obtain against him on such disputed bill, and requested defendant to bring an action for the purpose of testing his liability thereon.

The answer of the defendant admits that it severed the connection between its gas main and plaintiff's premises, and shut off the supply of gas therefrom, as alleged in the