Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-03-23
SUPREME COURT DECISIONS.
Nashville, December Term, 1862
Thomas III. ColdReu, Attorney
General and Reporter.
a. 9. Marberry Is. D. B. ola ! as.

which ID. B. Cliff was plaintiff and A.
Mayberry was defendant, and was brough
for the recovery of thirty-seyen bales o
lection, claimed as the property of III
plaintiff Cliff. While the trial was pro
crossing the Circuit Court permitted tn
plaintiff to amend his proceedings b,
adding the name of G. a. Merrill as
JOINT plaintiff.
The cotton was taken under the writ o
replevin on the first day of July, 1864
and delivered to Cliff, who soon thereaf
ter shipped it 10 New York. One witness
| testifies that the cotton was worth at tht
time of its seizure from $1.20 10 81. 2t
| per pound and that at subsequent time
during the same summer and autumn, the
price of such cotton rose to '$1.40 pei
pound 1t does not appear that the price
at the time Of the trial was proved.
There is proof that during the year
1868, cotton was worth only from twenty
five to fifty cents per pound
The Jury returned verdict for the de-
| PENDANTS and assessed the value of the
cotton at the sum of $12, 1925, being at
the rate of about seventy five cents per
which the defendants were entitled for its
detention by the plaintiffs were the
further sum of 81, 209.54. No interest
upon the value of the property was found
by the jury, unless they may have adop-
ted the amount of the interest on the
value as the measure of damages.
judgment being entered upon the YER
dict, the defendants, who were dissatisfied
with the amount of the verdict in their
favor, moved for new trial, and upon
the overriding of the motion filed bill
of exceptions and appealed in error to this
court.
The principal question in this case is,
whether the Circuit Court gave to the
court the proper instruction in regard to
the rules by which they should ascertain
the value of the property replevied and
the defendants damages for its detention.
The rules for estimating the value and
damages are prescribed in the Code as fol-
lows:
Sec. 1889. con the issue being found
for the plaintiff, or in case of default
upon writ of inquiry, the jury will ascer-
tain the plaintiffs damages for the seizure
and detention, and judgment will be rem
dered therefor with costs"
Sec. 8, 800. eff the issue is found for
the defendant, or the plaintiff dismisses,
or fails to prosecute his suit, the judgment
shall be that the goods be returned to the
defendant, or on failure, that the defend
ant recover their value with interest there
on, and damages for the detention; the
value of the property and the damages to
be assessed by the jury trying the cause,
or where the plaintiff fails to prosecute,
by Jury empanclled for the purpose.
Sec. 1891. ''The jury may, in proper
cases, give exemplary damages in favor
of either party, and in all cases where the
plaintiff fails to prosecute his writ with
effect. they may make such valuation as
will be likely to effect return of the
property to the defendant, if the char
acter of the property is such as to make
the return of the specific property i'm
portant.
The complex nature of the judgment
rendered in favor of the defendant in the
action of replevin; and the fact that at
the time of its rendition it must usually
be matter of uncertainty whether the
defendant will receive from the plaintiff
the property itself, or the value of the
property as fixed by the jury, renders the
problem of determining the principles
upon which the jury should estimate the
value of the property and the damages
for its detention, most perplexing one.
Probably no scheme for the ascertain
ment of these values could be devised
which would not if inflexibly applied, in
some supposablc case work injustice to
the one party or the other. Owing to
this completely and uncertainty, the mea-
surcs of value and of damages in replevin
might be quite different from those which
would be applied in the action of trover;
and an extended discussion of decided
cases would be of but little use in our in
vestigatiQn.
Our statute provides no mode for COM
pelling the plaintiff to return the proper
ty to the defendant after judgment in ia
vor of the latter, except by the action of
the jury in afiixing to the property such
valuation as shall make it to the interest
of the plaintiff thus to return it. The
Legislature evidently intended in the sec
vide complete and ample remedy and
indemnity for the defendant; and the
option, which is practically allowed to the
plaintiff as to the return of the property,
becomes very material to be considered
in determining the principles which should
govern such cases. See Goodman VS.
Floyd, 2 Hump. so.
| think the Legislature in providing
that the jury should ascertain the value of
the property and should give interest up
on that value, could not have contemplat-
cd that the value should be fixed as OF the
time of the trial; and there are other OBJ
iections to a rule fixing the value at that
time. The time when the property was
taken from the defendant by virtue
of the writ of replcvin is naturally sug-
gested as that at which the value OF the
property should be determined, and we
think that is the time which the Legisla-
ture contemplated should be adopted for
| that purpose. This rule is simple, and
under it and the provisions of our stat
utes, there is no difficulty in arriving at
substantial justice in any particular case
belonging to this class.
The objection to the rule fixing the
value at the time of the trial is, that the
statute requires the jury to give interest
upon the value fixed, which would OF
course be impossible if the value were
| fixed at the time of the trial.
| The jury should be instructed to ascer-
tain the value of the property at the time
it was seized under the writ OF replevin;
and if the character of the property is
such as to make the return of the specific
property important, they may make such
valuation of it as will be likely TO effect a
return of the property by the plaintiff to
the defendant; and upon this valuation
they are to give interest from the time OF
the seizure under the plaintiffs writ
The Judgment for this value and interes
will be discharged by return Of thu
property to the defendant. But the dc
PENDANT is also entitled to damages TO
the detention of the property from hin
by the plaintiff; and the judgment rem
dered for these damages will not be dis
charged by return of the property.
The damages to the defendant, of any
by the loss of the use and enjoyment o
hire of the property, may of course b
allowed by the jury.
If the property is damaged or deterio
rated in actual value while in the plain
tiff's custody in any respect, not tn
natural wear and deterioration which i
compensated by the allowance made 70
use or hire as above stated, this damag
or deterioration must also be allowed il
the calculation; otherwise it would be i
the power of the plaintiff, by returnin
the damaged or deteriorated property t
throw upon the defendant the loss whicl