
    WILLIAM J. MAGUIRE, PLAINTIFF IN ERROR, v. WILLIAM D. DUTTON ET AL., TRADING AS WM. D. DUTTON & CO., DEFENDANTS IN ERROR.
    .In actions of replevin, the measure of damage is the real value of the chattel at the time the tortious possession of the defendant began, with damages for its unlawful detention.
    On error to the Supreme Court.
    For the plaintiff in error, John W. Wartman.
    
    For the defendant in error, Lindley M. Garrison.
    
   The opinion of the court was delivered by

Garrison, J.

This is an action of replevin brought by plaintiffs, who claim to have leased, in 1887, to one John C. Bacon, a piano, that, in 1890, is found in the possession of William J. Maguire, the defendant. At the close of plaintiff’s case a non-suit was asked by the defendant upon the-ground, amongst others, that there was no proof of the value-of the piano.

This motion was denied and a judgment rendered for $250,. that being the sum at which Bacon, under his lease with the-plaintiffs, might have purchased the piano in 1889; had he, during each of the twenty-three months next succeeding June 15th, 1887, complied with the terms of the written contract.. In this judgment there is obvious error. The measure of damages that a plaintiff may recover in an action of replevinis the real value of the chattel at the time the tortious possession of the defendant began, with damages for its unlawful detention. West et at. v. Caldwell, 3 Zab. 736.

In the present case, and as to this defendant, the value of the piano nearly three years before he is alleged to have acquired it is of no legal significance. Still less so when that valuation was one established by two parties to a written lease-to which the defendant was in no wise a privy. Upon this-point we reverse the judgment below without expressing any opinion upon the other errors assigned or upon the jurisdictional question apparent on the face of the record.

For affirmance — None.

For reversal — The Chancellor, Chief Justice, Depue,. Dixon, Garrison, Mag-ie, Reed, Scudder, Van Syckel,.' Werts, Bogert, Brown, Clement, Smith, Whitaker. 15  