§ 532. PLAINTIFF BOUND BY VALUATION IN WRIT.

143

it was held in his suit on the replevin bond, the condition of which was, that the plaintiff in replevin should pay all such costs and damages as the defendant in replevin should recover against him, and should also return the goods in like order as when taken, in case such should be the final judgment, that the measure of damages was the same which under ordinary circumstances attending a sale and purchase might reasonably be agreed on as a fair price for the property between a vendor desirous of selling and a purchaser desirous of purchasing the property as a whole, to be used in the place where it was situated, and for the purpose for which it was intended and arranged. (*) In replevin for a fence, the plaintiff can only recover the value of the materials after removal, not the value of the fence as it stood on the land.() In Texas, in an action for the recovery of specific property or its value, a valuation by the jury higher than the evidence warranted, with the view of inducing a surrender of the property, was sustained. (c) Where goods are of special value to the owner, such value may be recovered, though the value to the party in the wrong is much less; so in case of "halfbreed scrip" () or of vouchers, statement of expenditures upon a building, and affidavits of their correctness. (*)

§ 532. Plaintiff bound by valuation in writ.—It has been held in England and in the United States, that the plaintiff in the replevin suit is bound by the estimate of the

Stevens v. Tuite, 104 Mass. 328.

() Pennybecker v. McDougal, 48 Cal. 160.

(†) Cochrane v. Winburn, 13 Tex. 143. We know of no warrant for such a doctrine elsewhere.

(4) Bradley v. Gamelle, 7 Minn. 331.

() Drake v. Auerbach, 37 Minn. 505.

property made by himself.' (*) The defendant, however, is not bound by the valuation in the writ,() nor in an action on a replevin bond is the value of the property fixed by the value stated in the undertaking given by the party replevying.(©)

§ 533. Value, when to be estimated.—The value of the property is to be added to the amount recovered in two different cases: first, in actions on the detinet, as it is called, that is, actions in which the property was eloigned or put by the defendant out of the sheriff's reach, so that it could not be restored by the sheriff to the plaintiff at the outset of the proceedings; second, in those jurisdictions permitting such a practice, where the defendant, upon proving his right, is allowed to elect between a return of the goods or their value, or, in any jurisdiction where, upon a judgment for a return of the property, it cannot be found by the sheriff.

In the first case the judgment cannot be for the property, since that is eloigned; it can only be for its value. The action becomes one for the conversion of property, and the measure of damages is the value of the property at the time of the demand by the sheriff,() or in those jurisdictions following that rule the highest value between that time and the trial.(®)

1 Middleton v. Bryan, 3 M. & S. 155.

(*) Schmidt v. Nunan, 63 Cal. 371; Tuck v. Moses, 58 Me. 461; Washington Ice Co. v. Webster, 62 Me. 341; Tiedman v. O'Brien, 36 N. Y. Super. Ct. 539. But in Briggs v. Wiswell, 56 N. H. 319, it was said the value in the writ of replevin is prima facie evidence against the plaintiff on the trial. () Thomas v. Spofford, 46 Me. 408; Tuck v. Moses, 58 Me. 461.

(*) Sweeney v. Lomme, 22 Wall. 208; West v. Caldwell, 23 N. J. L. 736. (4) Yelton v. Slinkard, 85 Ind. 190; Peters B. & L. Co. v. Lesh, 119 Ind. 98; Garrett v. Wood, 3 Kas., 231; Sherman v. Clark, 24 Minn. 37; Pope v. Jenkins, 30 Mo. 528; but contra, Miller v. Bryden, 34 Mo. App. 602 (value at time of trial).

(*) Tully v. Harloe, 35 Cal. 302.

§ 534.

VALUE INCREASED BY LABOR.

145

In the second case, the prevailing party (the defendant) is entitled to a return; and the value of the property is given him as compensation for the plaintiff's failure to return. If the defendant elects to take the value, or if the verdict is given in the alternative for the property or its value, the value is to be assessed at the time of the trial; (*) if judgment is given for a return, and, the sheriff not being able to find the property, damages are assessed on the bond, the value is to be taken at the time of the demand under the writ of restitution.()

In Tennessee the rule is different. The value of the property is estimated at the time of the replevin writ. In addition, if the property have increased in value since the seizure, and remain at the time of the trial at a higher point than when seized, the difference must be allowed the defendant as damages for the detention; if the value be greater at the trial than it had been at the seizure, but the increase be temporary, it will be left to the jury to allow the temporary increase as damages or not.(©)

§ 534. Value increased by labor of defeated party.Where a return of the chattels in their condition at the time of the taking cannot be had-their original value having been increased through labor of the defendant bestowed on them in good faith-the measure of the plaintiff's recovery does not now usually include the ad

(*) Hepburn v. Sewell, 5 H. & J. 211; Miller v. Whitson, 40 Mo. 97; Chapman v. Kerr, 80 Mo. 158; Mix v. Kepner, 81 Mo. 93; Hutchins v. Buckner, 3 Mo. App. 595; Brewster v. Silliman, 38 N. Y. 423; New York G. & I. Co. v. Flynn, 55 N. Y. 653; (but Brizsee v. Maybee, 21 Wend. 144, is contra); Scott v. Elliott, 63 N. C. 215; Morris v. Coburn, 71 Tex. 406. See, however, a different rule in Michigan and Nebraska, § 764, infra.

(*) Howe v. Handley, 28 Me. 241; Washington Ice Co. v. Webster, 62 Me. 341; Swift v. Barnes, 16 Pick. 194.

() Mayberry v. Cliffe, 7 Coldw. 117. VOL. II-10

ditional value.(*) So in replevin for a yacht, a defendant who claimed her under a purchase was allowed, in Massachusetts, to show the amount of his expenditures in improving her after his purchase and before the service of the writ.) But if the wrongful taking was wilful, the increased value is the measure of damages. (°)

535. Damages for detention.-Damages for detention are assessed to the time of the verdict, (d) and they may be given in an action on the replevin bond, although not previously assessed. () In Illinois it has been held, where there was no proof of actual damage, to be error for a jury to assess the damages at $50. In such a case only nominal damages can be recovered. (') In a case in Texas it was held that, as a general rule, no damages could be given for detention, the value of the property at the time of the "conversion," with interest, being the measure of damages. (*) In this case the court obviously confused the action with the action of trover. The rules governing the measure of damages in the two are, however, entirely different.

In Michigan and Nebraska it is held that if the prevailing party elects to take the value of the property instead of asking for a return, he can have no damages for detention of the property, but only the value at the

(*) Peters B. & L. Co. v. Lesh, 119 Ind. 98; Heard v. James, 49 Miss. 236; Buckley v. Buckley, 12 Nev. 423; Herdic v. Young, 55 Pa. 176; Single v. Schneider, 30 Wis. 570; 24 Wis. 299; Hungerford v. Redford, 29 Wis. 345. () Veazie v. Somerby, 5 All. 280.

(c) Heard v. James, 49 Miss. 236.

(d) Lesser v. Norman, 51 Ark. 301. If the property is returned pending suit, it is said that the expense of securing the return may be recovered as damages for detention. Leonard v. Maginnis, 34 Minn. 506.

(*) Smith v. Dillingham, 33 Me. 384; Washington Ice Co. v. Webster, 62 Me. 341.

(Seabury v. Ross, 69 Ill. 533.

(8) Gillies v. Wofford, 26 Tex. 76.

§ 536.

DECREASE IN VALUE.

147

time of the taking, with interest. (*) In Romberg v. Hughes () the court said:

"It is only in cases where a return of the property is had that the party to whom the property is returned is entitled to damages for the detention. The rule allowing the value of the use is peculiar to replevin, and grows out of the fact that the party to whom the property is awarded seeks to recover the property itself and not its value. In such case when the property is returned, the party to whom the return is made is entitled to the damages awarded for the detention. If, however, a verdict is rendered for the value of the property, the action in that regard being one for damages only, the measure of damages is the value of the property as proved, together with lawful interest thereon."

Where this rule is adopted, the peculiar action of replevin becomes, upon the election of the prevailing party to take the value of the property, exactly like an action of trover, and the same rule of damages is adopted. § 536. Decrease in value. Where the goods depreciated in value during the period of detention, the successful party can always recover the amount of the depreciation as damages for detention.() It is unimportant whether such depreciation arise from the defendant's act or default, or not; nor need there be a special averment of this cause of damage to sustain a recovery on this ground.(a)

(*) Hanselman v. Kegel, 60 Mich. 540; Just v. Porter, 64 Mich. 565; Nitz v. Bolton, 71 Mich. 388; Hainer v. Lee, 12 Neb. 452; Aultman v. Stichler, 21 Neb. 72.

() 18 Neb. 579, 582.

(*) Dalby v. Campbell, 26 Ill. App. 502; Yelton v. Slinkard, 85 Ind. 190; Russell v. Smith, 14 Kas. 366; Washington Ice Co. v. Webster, 62 Me. 341 ; Aber v. Bratton, 60 Mich. 357; Hooker v. Hammill, 7 Neb. 231; Moore v. Kepner, 7 Neb. 291; Rowley v. Gibbs, 14 Johns. 385; Boylston Ins. Co. v. Davis, 70 N. C. 485; Harrison v. Chappell, 84 N. C. 258; Zitske v. Goldberg, 38 Wis. 216. So of notes of third parties. Sullivan v. Sullivan, 20 S. C. 509. (4) Young v. Willet, 8 Bosw. 486; but in Odell v. Hole, 25 Ill. 204, an action for the replevin of a mare, it was said that damages for natural depreciation could not be recovered where damages for use of the property were given; but even in that case damages could be recovered for depreciation caused by the default of the party in the wrong.