
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Hart v. Tobias.
    In an action on a replevin bond, the value of the goods if less than the rent due, or the rent due if the value of the goods exceed it, is the measure of the plaintiff’s damage ; and where evidence of the value of the goods was excluded at the trial, a new trial was awarded. [vide 2 Bay, 408. S. C.]
    Motion for a new trial. The case was tried in the district of Charleston, last terni. The action was debt on ¿'replevin bond, given to the plaintiff, as sheriff, by the defendant,- as surety. The plaintiff produced, and proved the bond, and gave evidence of the amount' of the rent due by the principal in the bond, and proved that plaintiff in replevin had, &c. The condition of the bond being submitted to the same jury, charged with the issue, to estimate the damages as upon a writ of inquiry, according to the A. of A. 1702, in that case made and provided, he claimed- a verdict for the am’ouut of the reñí in arrear, wrtK' interest and costs. On the other side it was contended, that as the bond was condii tioned for the re-delivery of the goods seized and distrained for the rent, and replevied, the value of the goods so replevied, was the true measure of damages ; and that evidence touching their value ought to be given to the jury, to enable them to assess the true quantum of damages which they ought tef give. Gbimke, J.,who. presided at the trial, refused to admit evidence of the value ofoihe-goods replevied and directed-, the jury to find the value of thbrent due, and interest thereon ; and the jury- found accordingly. Tile motion to this court was argued on the ground of misdirection, by Cheves, for the defendant, who cited the following authorities : 1 Espin. Dig. 348. 4 T. ii. 433-. 2 H. Bk 36, 549„> Bac. Abr. Replevin. L.
    
      E contra.
    
    It was insisted by Ford, for the defendant, that the rent due, and the interest thereon, was the true measure by which the jury ought to regulate their verdict for damages in cases of this' sort: and that as the goods replevied, were known to be of more value than the arrears of rent, it could answer no end of justice to grant a new trial. ,
   Per curiam.

As the presiding judge at the trial, refused to admit evidence of the value of the property replevied, we are not informed whether that property was of greater or less value than the rent due and interest. This evidence ought to have been admitted ; and the jury should have been instructed to find for the plaintiff the amount of the rent and interest, if the goods replevied should appear to them equivalent to the rent and interest; and if the goods should, in their opinion, be of less value than the rent and interest, then to find to the value of those goods.

New trial granted.  