
    HUNT v. THOMPSON.
    (No. 671.)
    Replevin — Damages—Damages eor Detention — Interest—Value oe the Use op the Property — Recovery by Defendant.
    1. In replevin, when the .property taken upon the writ is delivered to the plaintiff under the provisions of Sections 5010 and 5011, Compiled Statutes, the plaintiff’s undertaking stands in the place of the property to the extent of the defendant’s interest, and the property passes into the exclusive possession and control of the plaintiff, or, in other words, the delivery of the property to the plaintiff passes the title to him as against the defendant, who must look for his protection to a recovery in damages, if the writ is wrongfully sued out.
    2. The right of a defendant in replevin to damages, .and the extent or measure thereof, depends upon the particular statute authorizing such a recovery.
    3. Under the statute allowing the defendant in an action of replevin, where the property has been delivered to the plaintiff, to recover such damages as are right and proper, he is entitled to recover such damages as are right and proper under the circumstances, and the statute contemplates that the defendant shall have adequate compensation for the injury sustained by the wrongful act of the plaintiff in suing out the writ.
    4. The universal and paramount principle underlying all rules on the subject of compensatory damages is that the person injured shall receive a compensation commensurate with his loss, and no more.
    5. The statute providing that the defendant in an action of re-plevin shall recover such damages as are ri'ght and proper, authorizes a recovery by'a successful defendant, where the - property has been delivered to the plaintiff, of damages for the wrongful detention, if the. circumstances are. such that he would not otherwise be fully compensated.
    6. When interest upon value is allowed a defendant in replevin "'it'is because it affords adequate compensation for the detention, and the value of -the property with interest constitutes -the proper measure of damages to be assessed. It is not allowed as interest upon a debt, or upon the theory that the relation of debtor and creditor exists be tween the parties.
    7. In replevin, interest upon the value of the property during the time the successful party was deprived of it is ordinarily the proper measure of damages for the detention, but where fhe property is valuable for its use, the value . of the use may be recovered instead of interest.
    8. A defendant in replevin is not confined to a recovery of interest in addition to the value of the property, where he succeeds in the action and shows that'the value of the use o'f the property of which he was deprived by the taking "upon tlie writ exceeds the interest, but in such case he 11 ''"niay Recover the’válue of the úse instead of interest.
    [Decided January 12, 1912.]
    (120 Pac. 181.)
    (122 Pac. 624.)
    [Rehearing denied April 1, 1912.]
    Ekror to the District Court, Albany County; Hon. Charles E. CarpRntRr, Judge.
    The action was replevin brought by George H. Hunt against E. Thompson. The material facts are stated in the opinion.- • ,
    
      M. C. Brown, for plaintiff in error.
    No return bf tire property taken upon a writ of replevin can be adjudged to the defendant'under our statute, but the defendant is entitled.only to recover damages if .the finding is in his favor. (Comp. Stat, Secs. 5010, 5011.) The statute expressly provides that the' plaintiff' may recover damages for the illegal'detention of the property. (Id. Sec. 5016.) But the defendant is not allowed by express'’provision of the statute to recover for illegal detention, it merely being provided that such damages shall be assessed in'his favor as are “right and proper.” (Id. Sec. 5017.) The legislature, therefore, has determined that damages for detention can only be assessed when the plaintiff recovers. There is a clear reason for this. When the property is taken upon the writ and delivered to- the plaintiff upon his executing the statutory undertaking it then becomes the property of the' plaintiff and it cannot be ordered returned to the defendant. The plaintiff then acquires title if he did not have it before, and the defendant’s only right is a judgment for value if he recovers. There is no reason for allowing him damages for detention. ' The defendant’s damages all accrue when the property is taken and delivered to the plaintiff at the beginning of the suit. The plaintiff is then indebted to the . defendant for the value of the property if it Was wrongfully taken. Being a debt, the defendant is entitled to interest thereon up to the time of judgment. But he is not entitled to recover the value of the use of the property, as for its detention, during the period between the commencement of the suit and the judgment. (34 Cyc. 1560-1564; Just v. Porter, 64 Mich. 565, 31 N. W. 444; Houselman v. Kegal, 64 Mich. 540, 27 N. W..678; Bigelow v. Doolittle, 36 Wis. 115; Justice v. Johnson, 17 Ohio, 154; McGrath v. Chamberlain, 20 Ill. 219; 3 Suth. on Damages, pp. 559, 560; Marshall v. Bivingston,' 77 Ga. 21; Thomas v. Price, 88 Ga. 553; Smith v. Adams, 79 Ga. 802; Gordon v. Little, (Neb.) 59 N. W. 783; Romberg v. Hughes, 18 Neb. 579, 26 N. W. 357; Hooker v. Hamilton, 7 Neb. 231; Moon v. Kepun, Id. 291; Hurd v. Gallagher, 14 la'. 394; Pike v. Hutchins, 1 Mass. 421.)
    
      H. V. S. Groesbeck, for defendant in error.
    An assignment of error that the judgment is contrary to law is too vague and indefinite to present any question.for. consideration. It is necessary that the motion for new trial, show wherein the verdict of the jury or the judgment of the court is contrary to law. (Miller v. State, 3 Wyo. 657; Syndicate Imp. Co. v. Bradley, 7 Wyo. 228; R. R, Co. v. Morris, 16 Wyo. 308; Freeburg v. Lamoureux, 12 Wyo. 41; -Elliott’s App. Proc., Secs. 306, 308, 309.) It is alleged in the petition in error that the verdict contains all items of damages that are unlawful, and that the judgment contains the same unlawful items of damages. But this is not a sufficient assignment, as it is not pointed out wherein the items of damages' are unlawful. Hence, neither the motion for new trial nor the petition in error contains sufficient assignments of error to present the question discussed in the brief of plaintiff in error. If the motion for new trial was incompleté, the omission cannot be supplied by assignments of error in the petition in error.
    The point is not .well taken that damages for detention could not be awarded to the defendant. In the first place, to be available at all, the motion for new trial should have alleged as a ground that the damages were excessive, or that there was error in the assessment of the amount of recovery. No such ground for new- trial was stated in the motion. We think the question is settled in this court that a defendant may recover damages for detention. (Bank v. Ludvigsen, 8 Wyo. 230.) While the statute permits the jury to assess to the defendant in replevin such damages as they think “right and proper,”' the same rule should be applied as in the finding for the defendant under Section 50x6, for the illegal detention of the property. Every in-tendment is in favor of the verdict and judgment. When the defendant is enttled to a return and damages for detention the ordinary measure of damages for detention is interest on the value to the date of judgment. But if the property is valuable for its use, the value, of the use may be recovered instead of interest. (3 Suth. on Damages, Sec. 1157; Loan Co. v. Myers, 143 Mass. 446; Allen v. Fox, 51 N. Y. 562.) Interest on value will not be adequate compensation where the use of the property detained is valuable. (3 Suth. on Damages, Sec. 1144; 34 Cyc. 1563, 1564.) The defendant had been deprived of the use of his team, which he had- used in his business, and the verdict shows that he was entitled to the right of property and right- of possession at the time the suit was commenced, and he was, of course, entitled to the use thereof, the value of which largely exceeded the interest. He was entitled to the usable value during the time of the illegal and wrongful detention. Where the defendant has a right to elect whether he will take a return of the property or the value, he is then entitled to take only interest, but that is not the case under our statute. The defendant is entitled to be placed in the same siuation as the plaintiff, when he is successful, and should have the right-to recover the value of the use of the property which has been wrongfully taken from him. (Cook v. Hamilton, 67 la. 394; Clark v. Keith, 9 Ohio, 72; Romberg v. Hughes, 18 Neb. 579; Campbell v. Bank, (Ida.) 88 Pac. 639; McGrath v. Wilder, 77 Vt. 431, 60 Atl. 801; Smith v. Duke, 6 Ga. App. 75, 64 S. E. 292.)
    
      M. C. Brown, for plaintiff in error,
    (on petition for rehearing) .
    The plaintiff’s only wrong is in suing out the writ. That occurred at the commencement of the action, and that is' the time to which the defendant’s damages relate, and thereafter there can be no illegal detention. Damages cannot be recovered against the plaintiff for detaining property which has become his own in the manner authorized by law. The theory adopted by the court may often result in great injury and injustice. If damages are to be measured by the value of the use of property against a plaintiff after the property has been delivered to him, the amount will be determined,, not from conditions existing at the time the action was brought, but upon conditions at the tim'e of the trial; and the damages may be much or little, depending upon the early or delayed determination of the case. In Gregory y. Morris, 96 U. S. 119, cited by the court in its opinion, it was not held that damages could be recovered by the defendant for either the wrongful taking or wrongful detention, but merely for wrongfully suing out the writ. The wrongful suing out of the writ is the act upon which only damages can be awarded to the defendant. The defendant suffered no damages by the taking of the property on the writ except the loss of his property. It was taken in a lawful way, and therefore the taking was not wrongful. The defendant declined to give a re-delivery bond and retain, the possession, and the plaintiff exercised his privilege by giving bond and taking the property. Every act of the plaintiff, therefore, was lawful. He honestly believed that he had a right to the property. When the defendant succeeded upon the trial what had he lost? Merely the property, which, so far as he was concerned, is represented by its value. He was then entitled to value and interest thereon, and nothing more. His remedy was on the bond given by the plaintiff, and the plaintiff’s liability became conditionally fixed when the property was delivered to him. The indebtedness related back to the date of the bond. A recovery upon the bond would include interest from its' date, as well as costs. There seems to be no reason why further damages than the value and interest should be allowed to the defendant. He can at any time replace the property' by buying other property of like character. There was no wrongful detention, for the plaintiff could not wrongfully detain his own property; and it became his own property when he lawfully obtained the possession of it upon the writ.
   Potter, Justice.

This was an action of replevin, and it comes to this court on error for the review of a judgment in favor of the defendant’ below. It is conceded that the property described in the petition, consisting of one team of mares, one wagon,- and 'one set of double harness, was taken upon the writ and delivered to the plaintiff. The verdict of the jury was as follows: “We, the jury duly impaneled and sworn to try the issues in-the above entitled action, do find for the defendant, R. Thompson, upon the issues joined in this action; and we do further find that said defendant, L. Thompson, had the right of property and the right of possession of, in and to the one team of iron-gray mares, one Studebaker wagon and one set of double harness in controversy, at the time of the commencement of this action; and we do further find.and assess as right and proper damages to said defendant for the value of said property in the sum of two hundred dollars, and as the damages for the unlawful detention-of said property since this action was commenced in the sum of one hundred thirty-six and 90/100 dollars, being a total of three hundred thirty-six and 90/100. dollars awarded by the jury as the damages -of said defendant.” Judgment was entered upon the Verdict for the total amount of the damages assessed.

It is contended by counsel for plaintiff in error that by the verdict and judgment the defendant was erroneously awarded damages for the wrongful detention of the property based upon the value of its use. It is urged in support of that contention that our statutes do not authorize a recovery by a defendant in replevin of damages for the detention of the property taken; that a clear distinction in that respect is found in the statutes between the damages recoverable by the plaintiff and those allowed in favor of the defendant; and that the defendant’s recovery cannot exceed the value of the property, when it has been delivered to the plaintiff, with interest upon such value as upon a debt.

A defendant in replevin may within forty-eight hours from the time the sheriff levies the writ - upon property described therein, execute with sufficient, sureties a written undertakng to the plaintiff, in at least double the value of the property taken, to the effect that the defendant will deliver the property to the plaintiff if such delivery be adjudged, and will pay all costs and-damages that may he awarded against him; and thereupon the sheriff is required to redeliver the property so taken to the defendant. (Comp. Stat. 1910, Sec. 501 x.) If such an undertaking is not furnished by the defendant, then it is required that the sheriff deliver the property taken to the plaintiff upon the execution by sufficient surety of the plaintiff of a written undertaking, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him. When, however, the property taken consists of an heirloom, personal keepsake, or other article the value of which is not wholly1 in its general marketable character, but consists in whole or in part of its being a relic, model, gift, family picture, painting or rare production of art or nature, the sheriff is required to retain and safely keep the property subject to the order of the court. (Comp. Stat., Secs. 5010, 5011.)

When the property has been delivered to the plaintiff, or remains in the hands of the sheriff, if the jury, upon issue joined, find for the defendant, they are also required to find “whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant against the plaintiff and his sureties.'” (Comp. Stat., Sec. 5017.) And when judgment is rendered against the plaintiff on demurrer, or he fails to prosecute his action to final judgment, it is provided that “the court shall, on application of the defendant, assess to defendant proper damages, including damages for the right of property or possession, or both, if he prove, himself entitled thereto, or cause the same to be done by a jury, for which, with costs of suit, the court shall render judgment for the defendant.” (Id., Sec. 5015.) Thus, when the property is delivered to the plaintiff under the provisions of Sections 5010 and 5011, “the plaintiff’s undertaking stands in the place of the property to the extent of the defendant’s interest, and . the property passes into the exclusive possession and control of the plaintiff.” (Boswell v. Bank, 16 Wyo. 161.) In other words, as stated by the Supreme Court of the United States in a case heard on error to the Supreme Court of Wyoming Territory: “The delivery of the property to the plaintiff passes the title to him as against the defendant, who must look for his protection to a recovery in damages, if the writ is wrongfully sued out.” (Gregory v. Morris, 96 U. S. 619, 624.)

The plaintiff’s recovery is regulated by the provisions of Sections 5016 and 5018, Compiled Statutes. The former provides that when the property is delivered to the plaintiff, or remains in the hands of the sheriff, if the jury, upon issue joined, find for the plaintiff, and upon inquiry of damages upon a default, they shall assess adequate damages to the plaintiff for the illegal detention of the property, for which, with costs of suit, the court shall render judgment for the plaintiff. It is provided in Section 5018 that when the property is not taken, or is returned to the defendant for want of an undertaking by plaintiff provided for by Section 5010, the action may proceed as one for damages only, and plaintiff shall then be entitled to such damages as are right and proper. The proper judgment to be entered where the plaintiff recovers and the property has been redelivered to the defendant upon his giving the undertaking provided for in Section 5011, was considered in Boswell v. Bank, supra.

Since the statute expressly provides that damages for the illegal detention of the property may be assessed when the finding is for the plaintiff, and the property has been delivered to him or remains in the hands of the sheriff, and does not so expressly provide as. to damages which may be recovered by the defendant, but that when the finding is in his favor damages which are “right and proper” shall be assessed, it is contended by counsel for plaintiff in error that the legislature has determined that damages for illegal, detention are recoverable only where the plaintiff is successful under the conditions specified in Section 5016, and that this excludes the right to assess such damages to the defendant in any case. Opposing counsel, on the other hand, suggests that by analogy the rulé prescribed in Section 5016 should be applied in enforcing the provision of Section 5017'for the assessment of “right and proper” damages' in favor of. a successful defendant. But we do not think Section 5016, regulating plaintiff’s damages when he succeeds in the action, .is to be regarded as controlling the damages to be assessed where the finding is for the defendant, nor that the provision allowing the plaintiff to recover damages for illegal detention necessarily excludes the right of defendant to such damages. The defendant’s right to damages, under- the circumstances of this, case, is fixed and determined by the provision of Section 5017, that the jury “shall assess to him such .damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant.”

At common' law a defendant in an action for replevin might have a return of the property upon establishing his right thereto, but he could not recover damages or costs. Statutes were enacted to remedy such unequal and unjust' condition, whereby the defendant was allowed damages and costs in case he recovered. The right of a defendant to damages, therefore, and the extent or measure of .that right, depends upon the particular statute authorizing such a recovery. Our statute allows him to recover such damages as are “right and proper.” Construing this statute, it was held in Gregory v. Morris, supra, by- the Supreme Court of-the United States, that if entitles the defendant to such damages as are “right and proper under the circumstances.” That is clearly the natural and obvious meaning of the provision; and it contemplates that the defendant shall have adequate compensation for. the injury sustained by the wrongful act of the plaintiff. It was so held in Nebraska upon a consideration of the same provision in the statutes .of that state, the court saying: “The code means that he shall be fully compensated when it says -that he shall have such damages as are' right and proper.” (Schrandt v. Young, 62 Neb. 254.)

The universal and paramount principle underlying all rules on the subject óf compensatory damages is, that the person injured shall receive a compensation commensurate with his loss and no more. Such rules “are but aids and means to carry oút this principle; and when in any instance they'do not contribute to this end, but operate to give less or more than just compensation for actual injury, they aré either 'abandoned as inapplicable, or turned aside by an exception.” (1 Sutherlahd on Damages, 17, 18.) Notwithstanding that the legal effect of the statutory provisions, where the property is delivered' to the plaintiff upon' his giving the undertaking authorized by Section 5010, is to pass the title and control to the plaintiff, the value of the property may not alone constitute full or adequate compensation to the defendant, in case it is found that he had the right of property and the right of possession. The detention in such case as well as the taking is included in the wrongful act, and may properly be considered in assessing such damages as are right and proper. And so we think that the statute clearly authorizes a recovery by a successful defendant of damages for the wrongful detention, where the circumstances are such that he'would not-otherwise be fully compensated. It may be that interest upon the value will afford adequate compensation for the detention-, and that the value with interest will constitute the proper measure of the damages to be assessed. But, if so, interest is allowable in addition to the value of the. property as damages for the injury sustained through the' wrongful act of the plaintiff, rather than upon the theory that the relation of debtor and creditor exists between .the parties entitling the defendant to interest as upon a debt. “Interest is allowed as a legal compensation for lost use.” (Cobbey on Replevin, 2nd Ed., Sec. .885.) -

Ordinarily interest upon the value during the time ■ the successful party was deprived of the property is the proper measure of damages for the detention, but' it is not always or necessarily so. Where the property-is valuable-for its use, the value of its use may be recovered instead of interest. (3 .Sutherland bn Damages, 559, 560; Cobbey on Replevin, 2nd Ed., Sec. 886,; Shinn on Replevin, Sec. 646; 24 Am. & Eng. Ency. E., 2nd. Ed., 522; 34 Cyc. 1560-1562.)

In the section cited from Cobbey on Replevin, it is said: “It is true that interest on the value of the property wrongfully detained is sometimes considered the proper measure of damages in replevin cases, but it was never regarded as limiting the amount of the damages which might be allowed, and in the nature of things it should not be.” And in Section 887 the author says: “In the case of work-cattle or horses, tools or implements of trade or husbandry taken from the owner, who is thereby deprived of their use, the reasonable value of that use will in 'most cases be the only just compensation for their detention.” (See also Sec. 888.)

It has been held that where a defendant elects, under a sfatute authorizing it, to take a judgment for value instead of the return of the property, he is limited in his recovery to the value and the interest thereon. The ground upon which that has been so decided is that by such election the defendant, in effect, makes a sale of the property to the plaintiff at the date of its taking, so that the value with interest up to the date of the verdict is a fair compensation. In other words, the defendant in such case, having the right of election, • waives the wrongful act, like a plaintiff who sues in trover. (Just v. Porter, 64 Mich. 565; Becker v. Staab, 114 Ia. 319; Bigelow v. Doolittle, 36 Wis. 115.) In the Michigan case the court say: “If he prefers to take the property, and the value of its use while detained, he can do so. The option is his, and not the plaintiff’s. There is no justice in his taking the value of the property, selling it to the plaintiff against his will, and also charging him with the use of it in addition.”

It is contended that the rule so adopted should be applied here, since the defendant is not entitled to a return. But there is a substantial difference between our statute and one requiring the defendant to elect whether he will take a judgment for the raturn of the property or its valué. In the latter case, where there is an election to take a judgment for value, the defendant by his own act waives his right' to a return, and, therefore, it may be proper to confine his compensation to the value with interest. Under our statute the ’ defendant has no option to exercise. It is true that he is limited in his recovery to damages; but that is because the statute so declares, and it is not dependent upon any act of the defendant.’ The position of the plaintiff is the result of his own act in taking the property and securing its delivery to him. Though the statute provides for recovery by the defendant of damages only, it prescribes that the damages shall be such as are right and proper, and no good reason is perceived for holding that he is confined to interest as damages for the detention, if he establishes the fact that the value of the use of the property of which he was deprived through no act or election on his part exceeds the interest.

It was at one time held in Nebraska that a defendant in’ replevin was entitled to damages for detention only when the property was returnéd to him, and that if a verdict is for the value, “the action in that respect being one for damages only, the measure of damages is the value of the property as proved, together with lawful interest thereon.” (Romberg v. Hughes, 18 Neb. 579.) In that respect the case was overruled in Schrandt v. Young, 62 Neb. 254, where the question is considered in an able opinion by Judge Pound. In that state, when the defendant recovers, an alternative judgment is required for the return of the property, or, if return cannot be had, for the value or value of possession, and for damages for withholding the property. As said in the opinion in the case last cited, the election to return or pay the value is left practically to the plaintiff, and it is further said: “The rule in Romberg v. Hughes is not required by, nor has it any support from, the statute or the authorities, and has been cited only to be received with doubt. * * * Nor is it sustained in a jurisdiction like ours, where the defendant is not required to elect whether to claim return or'value, by'the suggested analytical distinction between replevin .and trover:” Further, it is said : “If the value of the -use exceeds the interest, it is unjust that the defendant, who was entitled to and deprived of the use, should be required to take the'interest only; and it is equally inequitable to allow tire plaintiff by merely paying the value óf' the property and the interest, to retain the difference between the interest and the value of the use of the property.”

The evidence is not here, but it is evident that the amount allowed as damages for thé detention exceeded the interest, since less than a' year intervened between' the time when the suit was commenced and the date of the verdict, and it is conceded that the assessment of- such' damages was básed upon the value of the use of the property. For the reasons stated, the judgment is not objectionable on that ground. Having thus disposed of the only objection urged against the verdict and judgment,'it is unnecessary to consider the points suggested by counsel for defendant in error relative to the sufficiency of the motion for new trial to raise the question. The judgment will.be affirmed.

Beard, C. J., and ScoTT,'J., concur.

ON PETITION FOR REHEARING:

Potter, Justice.

A petition for rehearing has been filed in this case and counsel for plaintiff in error has ably and courteously discussed the qüestion .considered in the former opinion, contending that the court erred in holding that, a defendant in replevin, if successful, is. entitled -to recover anything by way-of damages for the detention of the property taken upon the writ; and that he may recover as such damages, under the circumstances stated-in the opinion, the value of the-use of the property instead of interest. -It is earnestly argued- that- under our statutes a plaintiff in replevin- who has acquired possession of the. property taken upon the writ by giving the authorized undertakng cannot properly be said to wrongfully detain the same1, and should not, therefore, be held liable to respond in damages as for its wrongful detention. The contention is plainly stated in counsel's' brief that the plaintiff so acquiring possession of'the property becomes the owner of it, and, for that reason, the measure of defendant’s damages when he succeeds in the action should ordinarily be confined to the value of the property with interest thereon, as upon á debt. Counsel seems to concede, however, that there may be conditions where a writ wrongfully sued out will cause damage far beyond the value of the property and the interest thereon, such as where the property is shown to have had a peculiar value to the defendant, as property that cannot be purchased in the open market, or where the defendant through the wrongful suing out of the writ may have been prevented from performing a contract of sale requiring him to deliver the particular property. And we understand from the brief that it is also conceded that the defendant should, under all circumstances, be allowed to recover as damages an amount “commensurate with his loss.” It is, however, insisted by counsel that the case at bar is not one authorizing the recovery of special damages, for the reason that the property taken might have been replaced by purchase in the open market, and the defendant can be fully compensated for his loss by the value of the property with interest thereon, and under the circumstances his recovery should be confined thereto.

It may be said that in this case the defendant alleged b}r his answer that by being deprived of the use of the property during the pendency of the action he was damaged in the sum of $200. Without considering whether the value of the use, if recoverable at all, would be upon the theory of special damages", or whether the allegation of the answer would be sufficient to authorize such recovery as special damages, we proceed to a discussion of the contention of counsel that a plaintiff in replevin after securing the delivery of the property to him cannot be held to wrongfully detain it. Counsel is mistaken in supposing that the question may have been decided upon less than the usual careful consideration given to cases in this court, for the conclusion, whether erroneous or not, was reached only after mature deliberation; and, having carefully considered counsel’s able presentation of the case from his standpoint, we reman of the opinion that it was correctly decided.

Why is it that upon plaintiff’s giving the undertaking, which he is allowed by statute to do and thereby obtain a delivery of the property to him, the title is passed to him as against the defendant? Surely not because it is determined by such action that he is the true owner of the property, for that is one of the questions to be decided at the trial, if he claims ownership. The reason is and must be that the statute allows the defendant in such case to recover damages only, if he succeeds upon the trial, and provides only as to the condition of the plaintiff’s undertaking that he shall duly prosecute the action and pay all costs and damages which may be awarded against him. Perhaps it is immaterial whether the damages to be so recovered, in excess of the value of the property and interest, are to be regarded as general or special. Counsel argues that when the plaintiff has so secured the delivery of the property to him, being authorized by law to do so, his detention of the property thereafter is not wrongful. It might as correctly be said that his act in suing out the writ and obtaining possession of the property is not wrongful, for the law also authorizes him to do that. But he is allowed to do that, and thereby keep as well as take the property upon the condition that he shall enter into an obligation to pay all costs and damages that may be awarded against him. And if it be finally determined that he was not entitled to the possession, then clearly it will thereby be determined that his act in suing out the writ and causing the property to be delivered to him was wrongful; and if that act was wrongful, it follows by the same reasoning that the detention would be wrongful. To state it differently and perhaps more accurately, the wrongful suing out the writ results not only in taking the property of the plaintiff but also in its detention, or as said in the former opinion, “the detention in such case as well as the taking is included in the wrongful act.”' We understand counsel to concede that damages are recoverable by a defendant for a wrongful suing out of the writ, and that it is for such act only that damages are recoverable. To determine, then, what damages would be “right and proper,” which the statute says may be recovered, it is necessary to ascertain the effect of the act of suing out the writ upon the defendant’s rights. His right as the owner and the one entitled to possession of the property was not alone that of possession at the moment it was taken from him, but also to retain and use it; and of that right he would be divested by the wrongful act of suing out the writ, and should be given full and adequate compensation for the loss of that right. True it is that plaintiff’s act in suing out the writ and securing a delivery of the property to him is authorized by law, but not a law which either provides or intends that the defendant’s property shall be taken and passed to the plaintiff without adequate compensation for the wrong suffered by him in consequence thereof, if it should be found that the plaintiff had no right to .take the property. A law on the contrary which provides and intends that if the plaintiff fails to establish his claim to the property or to its possession the defendant may recover such damages as shall 'be “right and proper.”

Instead of perceiying any injustice in allowing the de» fendant full and adequate, compensation by awarding the value of the use of the property rather than interest, where •the property is shown to have had a usable value exceeding interest, as contended by counsel, we think that great injustice might result in such case from a rule confining the defendant’s recovery to the value of the property and inter-,, est thereon, upon the theory that the plaintiff, by wrongfully pursuing the remedy which the statute has provided for one who finds his property unlawfully in the possession of another becomes in effect the purchaser of the property delivered to him and as such the debtor of'the defendant for the value thereof. It may be immaterial whether the interest on the value of the property or the value of its use be referred to as damages for detention, or as an element to be considered in ascertaining the amount of the damages for the wrongful suing out of the writ. We are satisfied that under the circumstances stated in our previous opinion the value of the use may properly be considered in esti: mating the defendant’s damages, in order to award him such an amount as shall be “right and proper' under the circumstances.” He will have been as clearly deprived of such use as of thé property itself, and when the property is shown to have had a usable value exceeding interest he will not be fully and adequately compensated unless such value be allowed him, and we are convinced that the statute authorizes it to be allowed in such case instead of interest.

We are not strongly impressed by the argument that our statute which permits a defendant to give a re-delivery bond and thereby retain possession is analogous to statutes of other states allowing a defendant to elect in case he recovers to either take a judgment for value or for a return of the property, so that his failure to give the bond should be treated as an election on his part, bringing the case within the rule adopted under such statutes that where the election is to take judgment for value the recovery is limited to the value and interest, on the theory that by such election he has in effect sold the property to the plaintiff. The defendant is not required to give a re-delivery bond, though he may do so. Under the statute permitting it he is not as free to act as a defendant who is merely required to say upon recovery at the trial that he will take a judgment for value instead of for the return 'of the property. It may be that his situation is such as to make the giving of .the re-delivery bond impossible. On the other hand, every act of the plaintiff in commencing the suit and giving the undertaking whereby he obtains possession of the property is voluntary on his part. And he takes that action with the knowledge that his obligation and liability' will be to pay such damages sustained by his act as may be found to be1 “right and proper.”

To hold'that'the act of the plaintiff in so commencing the suit, suing out the writ,, and obtaining possession of the property, consummates in legal effect a sale of the property to him, thereby limiting the damages of the defendant to the value of the property and interest thereon, as upon a legal sale without express agreement as to price, would put it within the power of anyone capable of giving the statutory undertaking, and against one unable to furnish a re-delivery bond, to force the sale of any personal property to him which he might desire and be willing to pay the market price for against the consent of the'true owner. And even if the true owner in such case, upon his property being so taken from him, might be able to give a re-delivery bond but unwilling to do so, there would be no just reason' in a statute imposing upon "him the penalty of either giving the bond or consenting, by refusing or declining to do so, to the sale of his property at such price as it may be found upon the trial to have been worth, so as to limit his recovery to such value with legal' interest; where he is able to establish that the property had a usable value in excess of the interest of which he has been deprived. And we do not think that our statutes are to be construed to have that effect.

We are satisfied that the case was properly decided and upon a correct principle under our statute as herein explained. A re-hearing is therefore denied.

BuaRd, C. J., and Scott, J., concur.  