REPLEVIN.

[Hamilton Circuit Court,

January Term, 1891.]

Swing, Cox and Smith, JJ.

#### †HENRY HEYNS v. D. K. NORTON & SONS.

Where Owner Regains Possession, no Damages for Doss of it Can be Recovered.

Heyns was the owner of a planing mill. A receiver was appointed by the court who took charge of said mill. The receiver placed the mill in charge of Heckman. A constable levied on the mill and sold it as the property of Heckman to N. & Sons. Heyns replevied the mill from N. & Sons. The receiver had Heyns cited for contempt of court. Heyns turned the machine over to the receiver. In an action on the bond N. & Sous recovered of Heyns the value of the machine. Held, this was error. The real owner having possession of the machine, N. & Sons could only recover damages for loss of possession.

Error to the Court of Common Pleas of Hamilton county.

†

This judgment was affirmed by the supreme court, without report, 52 O S 677.

SWING, J.

Heyns brought an action in replevin against D. K. Norton & Sons, and replevined a certain planing machine. The action was brought before a justice of the peace. The case was appealed to the court of common pleas, the jury returned a verdict for the defendants, finding the right of possession in them and assessing their damage at two hundred dollars.

The following facts were virtually admitted by both parties and conclusively appear to be true from the evidence.

> Henry Heyns & Co. were at one time owners of the machine in controversy.

> A. Cohen was appointed receiver of the assets of the firm of Heyns & Co., and as such took possession of said machine. He placed the machine in the possession of one Heckman. While in the possession of Heckman, a constable levied on the machine as Heckman’s property, and sold it at public auction. The defendants in error, Norton & Sons, purchased it, paying $55 therefor. Heyns thereupon replevied the machine as before stated from Norton & Sons. The receiver, Cohen, learning of the condition of affairs, had a citation issued against Heyns for taking possession of the machine; whereupon Heyns, under order of the court, turned the machine over to the receiver Cohen, who afterwards sold it for $40.

> - The evidence showed that the machine originally cost $350. An expert witness testified that at the time the machine was replevied that it was worth $200.

> No evidence was given as to any damage to defendants, Norton & Sons, for being deprived of any mere possessory right — their proven damage was the loss of the machine of the value of $200.

Upon the verdict judgment was rendered. And this action in this court is to reverse this judgment on the grounds' that the judgment is excessive; that it is against the law and the evidence, and numerous other grounds.

We don’t think that it can be questioned, but what Norton & Sons were, as between Heyns and themselves, entitled to the possession of the machine, and •that to the extent that the verdict of the jury so found, it is correct.

*223Muller, for plaintiff in error.

Wilby & Wald, for defendant in error.

Neither can it be questioned that Norton & Sons were not the owners of the machine, nor can it be questioned that before the verdict and judgment of the court, the legal owner, viz: Cohen, the receiver, was placed in-possession of the machine.

Under this- state of facts, what were the rights of Norton &'Sons, and the-obligations of Heyns?

It is-claimed by counsel for Norton & Sons, under the authority of Armory v. Delamire, 1 Str. 504, and numerous other cases which follow this leading case,, among which have been cited to us: 24 Mich., 492; 34 N. Y., 583; 15 Conn., 302,. volume 1, part x, Smith’s Leading Cases, 679, that Norton & Sons were entitled-to recover from Heyns the full value of the property, even admitting that Norton. & Sons were not the owners, and had only a limited interest in the chattel.

Wells on Replevin, at sec. 587, says:

> "But when the contest is between the owner of a limited interest in a chattel, and an intruder who has no interest in the property, the owner of the limited interest is entitled to recover the property or its value, because he may be liable to account to the general owner.”

This is the rule, and the reason of the rule, as laid down in all the cases. In some of the cases a further reason is given, viz.: that the wrong-doer should be punished for his wrongful act.

But we regard the reason as above stated by Wells as the true reason on which the rule rests.

In this case the reason for the rule does not exist. The legal owner took possession of the chattel before the trial of the cause, and Norton & Sons could not have been liable to account to the owner for the machine or its value; although they may have been for damage for loss of possession.

In our opinion, the reason for the application of the rule having ceased, the-rule should cease.

The only evidence before the jury as to damage was as to the value of the-machine. Nothing was offered showing damage resulting from loss of possession, nor anything as to punishment.

If there could be any question as to Norton & Sons being responsible to the real owner for the property, or if there could be any question as to -Norton & Sons’ ownership, the rule should apply; but where, as in this case, the real owner has got possession of the property, and the parties in possession can in no event be held accountable for the value of the property to the real owner, we do not think it should apply. See Nash’s Pleadings, vol. 2, p. 831, and Steele v. Lowry, 4 O., 72-77.

If we are correct in our view of the law of this case, it follows that the verdict and judgment of the court of common pleas is not sustained by the evidence,, and for this reason the judgment should be reversed. Norton & Sons may be entitled to a judgment against Heyns for damages resulting from the loss of possession. The case will therefore be remanded to the court of common pleas for further proceedings.