
    Lester Clark v. Caleb Keith.
    'In replevin for several articles, where the jury find for the plaintiff, as to part of them, and for the defendant as to part, assessing to each the proper damages, separate judgments will he entered in favor of each, with full costs.
    Replevin. From Huron. The plaintiff replevied three stacks of hay and thirty-five bushels of corn in the ear standing on the ground. The defendant pleaded, 1. Non detinet. 2. Property in himself, derived through a constable’s sale. The jury returned the following verdict. “ That at the commencement of the suit, the right of possession and the right of property in and to the three stacks of hay in-said declaration mentioned, and in and to twenty bushels part and parcel of the corn therein also mentioned, were in said Lester Clark, and they assess his damages by reason of the premises, at five dollars. And the jury do further find, as to the rest and residue of said corn, viz. the quantity of five bushels, the right of possession, and the right of property, at the commencement of the suit, were in the defendant, and assess the value thereof at two dollars and fifty cents, and his-damages at one dollar.” The counsel for the plaintiff moved for judgment against defendant, for the damages assessed against him with full costs, but the questions arising on the verdict were reserved.
    N. Newton, jr. for plaintiff,
    thought the right to recover costs depended upon the pleadings. The defendant having put in issue the; whole property replevied, when he should have so pleaded as to separate his own from the plaintiff’s property. The plea being found false in part, is bad in toto. Where the whole property is put in issue, as in the plaintiff, if he recover at all, recovers full costs. 4 Mass. 614.
    No argument for defendant.
   *By the Court,

Wood, Judge.

Our replevin act, 3 Ch. St. 1723^, § 7, 8, provides, that in all cases where issue is joined in replevin, and the jury shall find for the defendant, they shall also find whether the defendant had the right of property in the goods and chattels, or the-right of possession only, at the commencement of the suit, and if they shall find either in his favor, they shall assess such damages as they may think right and proper for the defendant, on which, with costs of suit, judgment shall be rendered by the court. But if the jury find for the plaintiff on the issue, they shall assess adequate damages to-him for illegal detention of the property, for which, and the costs, judgment shall be rendered for the plaintiff. In this case both parties-seem to be within the letter and spirit of the act of Assembly, and entitled to costs, for each has an assessment of damages in his favor,, and we see nothing inconsistent with general principles, in awarding-costs to each. The precise question was decided in Massachusetts, in 1809, Powell v. Hinsdale, 5 Mass. 343. In that ease the jury found part of the chattels in the plaintiff and part not, and the court said, that in replevin, each party might be an actor, and if the plaintiff prevailed he should have damages for the caption and detention by the-defendant, but if .the defendant prevailed, he should have a return of the goods, and damages for the taking on the writ, with costs. In ■which case, each party would he considered as prevailing, and as each had judgment for damages, he must also have judgment for costs. We consider the same rule applicable to this ease. Judgment will therefore be entered for the plaintiff, for five dollars and costs, for the defendant for three dollars and fifty cents and costs.  