This action was brought to recover damages for breach of condition of a replevin bond in not returning an automobile awarded to defendant in replevin, who is plaintiff in this action. The automobile was not reclaimed by defendant in replevin suit, and was delivered to plaintiff in that suit, and while in his possession he caused it to be repaired. After judgment awarding return of the goods to Naylor, the plaintiff in this suit, Mathias, the obligor in the bond and the defendant, below, tendered a return upon payment of the bill for repairs, claiming that the car was subject to a garage lien for them. This Naylor refused to pay and thereupon the car was retained by the defendant in this action.

The plaintiff recovered in the District Court and its judgment was affirmed by the Supreme Court. We think the judgment should be affirmed upon the ground that the tender of the ear ivas not unconditional, but subject to a claim for payment for repairs, without which no delivery would be made.

*254The Supreme Court determined that there was a valid lien and therefore the car was not returned as required by the condition of the bond. It is not necessary to determine in this case whether a legal lien can be created by one who holds an , automobile taken by virtue of a writ of replevin, or whether any lien existed in this ease, and in affirming this judgment we do not express any opinion on that question.

The plaintiff’s right to recover had a sufficient basis if rested on the fact that the tender was not unconditional but subject to a demand for payment. The condition of the bond requires a return of the chattel, and a tender of the character present in this case is not a return of the goods awarded.

The judgment is affirmed, with costs.

For affirmance — The Chancellor, Chief Justice, Swayze, Parker, Bergen, Kalisch, Black, White, Heppenheimer, WILLIAMS, TAYLOR, JJ. 11.

For reversal — None.