By the action of replevin, the plaintiff, having taken property which he calls his own, seeks to establish his title; and the defendant, denying the plaintiff's title, endeavors to establish his own. But, incidental to these questions of title, are those of damages. The plaintiff claims compensation for the wrong done to him, in taking his goods and compelling him to resort to this process to recover them. The defendant claims to have his goods back again, and also damages for taking them by this process, (v) We should apply here the same principles which have been already stated in relation to trover; each party may claim complete compensation, and no more. The plaintiff has the goods; and, if he succeeds, should have so much more as he has lost, or the defendant has gained, or might well have gained, by the taking and detention of them. If the defendant succeed, he should have, beside his judgment for a return, damages to cover his direct loss by the taking and detention, (w) Whichever * party establishes his property in the goods, has also a right to have made good to him by damages, any deterioration which they may have suffered while wrongfully in the hands of the other party, (x) This rule, however, is subject to the qualification, that a plaintiff in replevin, who retains the articles replevied until judgment in the suit, cannot claim damages for any depreciation in their value, during that period; because he might sell them immediately in such a manner as to ascertain their value, for which alone he is answerable on his bond, (y)

It has been held, that an action on the replevin bond is defeated by the destruction of the property in the hands of the plaintiff in replevin, by the act of God before the judgment, (z) But this decision has been much doubted, on the ground that if one takes property from its true owner, if it be destroyed in the hands of the taker, it should be regarded as his loss, and not as the loss of the owner, (a) Such would doubtless be the decision if the same defence were attempted against an action of trespass or trover.

(v) Brace v. Learned, 4 Mass. 614, 617, per Parsons, C. J. If the jury find the property to be part in the plaintiff, and part not, each party is entitled to damages and costs. Powell v. Hinsdale, 5 Mass. 343

(w) Rowley v. Gibbs, 14 Johns. 385. See supra, note (j). In Veazie v. Somerby, 5 Allen, 280, it was held, that in an action of replevin of property against a claimant of the same by purchase, the defendant may show the amount of expenditures made by him in improving the property, after the same came into his possession, for the purpose of proving damages.

(x) Rowley v. Gibbs, 14 Johns. 385.

(y) Gordon p. Jenney, 16 Mass. 465.

(z) Carpenter c. Stevens, 12 Wepd. 589. See Hinkson v. Morrison, 47 la. 167; Walker v. Osgood, 53 Me. 423.

(a) Suydam v. Jenkins, 3 Sand! 614, 643, per Duer, J.

The question as to the time when the value of the goods should be taken, to which we have alluded in speaking of trover, may also arise in an action on the replevin bond, or if the defendant prevails in the original suit; and we think it must be governed by the principles we have already stated as applicable to that action, (b)

In an action upon a replevin bond, the value of the property, as indorsed upon it, is, at the plaintiff's election, taken at its true value, (c)

* If the writ, in replevin, is sued out maliciously, it has been held, that exemplary damages may be given in this case, as for a wanton and malicious trespass, (d) But in an act on a replevin bond, it is also said, that counsel fees, or compensation for attendance at court in the replevin suit cannot be recovered, (e)

If one of the parties has but a qualified right in the property, as by attachment or lien to secure a debt, he recovers only to the extent of that lien or interest, unless the other party fails to make out any rightful title or interest whatever. (f) Nor can the defendant recover the value of the whole property, if, after the action commenced, he repossessed himself of a part of it Although the plaintiff is nonsuited in an action of replevin, he may still offer testimony to prove ownership of the property in himself, upon inquiry into the right of the defendant's possession, for the purpose of showing that the defendant has sustained no substantial damage, as the plaintiff was the owner of the property, (g) This action being, as it is said, in substitution of the old action de bonis asportatis, must be governed, at least in this respect, by the rules of that action. (h)

(b) Supra, note (f). The value of the goods at the time of the service of the writ of replevin, with interest until the rendition of judgment, is held to be the ordinary measure of damages when the defendant prevails. Brizsee v. Maybee, 21 Wend. 144; Mattoon v. Pearce, 12 Mass. 406; Barnes v. Bartlett, 15 Pick. 71: M'Cabe v. Morehead, 1 Watts & S. 516: Caldwell v. West, 1 N. J. 411, 422.

(c) Middieton v. Bryan, 3 M. & S. 155: Huggeford v. Ford, 11 Pick. 223, Parker v Simonds, 8 Met. 205. In an action of debt on a replevin bond, the original plaintiffs having failed in their action, and a writ of restitution having been issued, by virtue of which the defendant demanded the goods, he was held entitled to the value of the goods at the time of the demand. Swift v. Barns. 16 Pick. 194 See also Howe v. Handley, 28 Me.

241, and Suydam v. Jenkins, 3 Sandf. 614, 645, per Duer, J.

(d) M'Donald v. Scaife, 11 Pa. 381; Brizsee v Maybee, 21 Wend. 144; Cable v Dakin, 20 id 172; M'Cabe v. More-head, 1 Watts & S. 516

(e) Davis r. Grow, 7 Blackf. 129.

(f) Scrugham v. Carter, 12 Wend. 131, Lloyd v. Goodwin, 12 Smedes & M. 223. In Jennings r. Johnson, 17 Ohio, 154, it was held, that if property be replevied from a sheriff holding it under execution, and the issue be found for the defendant, if the value of the property be greater than the amount of the execution, the rule of damages is the amount of the execution with interest thereon; but if the value of the property be less than the amount of the execution, then the measure of damages is the full value of the property.