remedy of the plaintiffs would be inade- | construction of the road. This was not alquate."

lowed as interest, but as part of the damages. Pennsylvania Schuylkill Valley R. Co. v. Ziemer, supra.

And in an action for damages for construction of a railroad, affecting plaintiff's property, it was held that interest could be In an action for trespass on land and reallowed from the date of construction as moving gravel, where the defense was that part of the damages, but not as interest. it was a public highway, it was held that Pennsylvania Schuylkill Valley R. Co. v. the jury might enhance the damages by a Ziemer, 124 Pa. 560, 17 Atl. 187. The court sum not greater than the interest on the said: "In cases of this kind, interest is not amount from the time the action was allowed as interest, but it is usual to in- brought to the time of trial. District of struct the jury to increase the damages by Columbia v. Robinson, 14 App. D. C. 512, that amount. In other words, interest is affirmed in 180 U. S. 92, 45 L. ed. 440, 21 allowed as damages. If it were otherwise, | Sup. Ct. Rep. 283. In this case interest was a person whose property has been taken, in- discretionary with the jury. jured, or destroyed, would not receive full satisfaction."

In an action for damages for wrongful sale of real estate belonging to plaintiff, and conveyed by him to a trustee to secure a note, it was held that the general rule was that interest was not recoverable on unliquidated damages, and the interest was not recoverable in addition to the damages assessed by the jury, but should enter into the estimate, and be found as part of the damages. Dozier v. Jerman, 30 Mo. 216.

And in a suit for trespass to realty, it was held not error to charge the jury that if they found that the plaintiff was entitled to damages, they might, if they saw proper, add interest on the same from the time such damages accrued, and embrace the whole in one amount. Gress Lumber Co. v. Coody, 104 Ga. 611, 30 S. E. 810.

terest was denied where the amount of damages was not susceptible of computation.

In an action for destruction of crops, where the jury decided adversely to plaintiff on interest, the court did not err in refusing to allow judgment for interest prior to the date of the judgment. Connolly v. Varney (Ky.) 116 S. W. 340.

In Richards v. Citizens' Natural Gas Co. supra, the court said: "These principles have been very recently affirmed by this court in Pennsylvania Schuylkill Valley R. | Co. v. Ziemer, 124 Pa. 571, 17 Atl. 187, and Plymouth Twp. v. Graver, 125 Pa. 37, 11 Am. St. Rep. 867, 17 Atl. 249; and although there is some conflict in the decisions (Philadelphia, W. & B. R. Co. v. Gesner, 20 Pa. 242; Delaware, L. & W. R. Co. v. Burson, 61 Pa. 380; Pittsburgh Southern R. Co. v. Taylor, 104 Pa. 306, 49 Am. Rep. 580; and Allegheny v. Campbell, supra), it is not so much in regard to the principles as in the mode of expression. The contest has been whether the allowance should be made or not; and the name by which it In Kentucky, interest was held to be disshould be called, whether interest or com-cretionary with the jury. In other cases inpensation for delay, measured by the rate of interest, received little attention, and it was incautiously said that interest was or was not to be allowed. The distinction, however, is important, for failure to observe it leads to confusion, as in the present case. Interest is recoverable of right, but compensation for deferred payment in torts depends on the circumstances of each case." On an appeal from the report of viewers in the assessment of damages to land from a railroad, it was held that the direction of the court to the jury to allow interest was error. Reading & P. R. Co. v. Balthaser, 126 Pa. 1, 17 Atl. 518. The court said: "This would have been an appropriate direction in an action ex contractu, because interest is a legal incident of a debt; but is not justifiable in an action of trespass. We might not have reversed for this alone, but, as the case goes back for other reasons, we again call attention to this well-settled distinction between actions resting on contract and those growing out of a tort, so far as interest is concerned. In the former, interest is demandable as interest; in the latter, it is not. In the former, the court may properly direct its allowance; in the latter, the question belongs to the jury. It may, or it may not, enter into their calculation of the damages. Whether it shall or not depends on the judgment of the jury, in view of all the circumstances of the case." And in an action for damages to property, caused by the construction of a railroad, it was held that the jury could add interest to the amount allowed from the date of the

In an action for injury to real property by reason of a tunnel constructed by defendant, it was held that the damages were unliquidated, and the amount could form no basis upon which interest could be computed until a judgment. Chicago v. Allcock, 86 Ill. 384.

And in an action of trespass for cutting timber, it was held that interest on the claim could be allowed only from the time of the judgment, liquidating the damages. Robertson v. Green, 18 La. Ann. 28.

And where an unfinished street was injured by hauling heavy machinery thereon before the work was completed, it was held in an action by the street contractor that interest could be allowed on unliquidated damages only from the date of judgment, and not from the date of judicial demand. Wright v. Abbott, 6 La. Ann. 569.

"The

In New York, interest was allowed on damages caused by mobs. Greer v. New York, 3 Robt. 406. The court said: case cannot, we think, be distinguished from Dana v. Fiedler, 12 N. Y. 50, 62 Am. Dec. 130, which must now be regarded as having changed the rule of damages in cases of this nature. The same principle is involved in the decision in Potter v. Merchants' Bank,

and negotiated the receipts to a trust com- | pany, and failed. The wool company brought an action of replevin, and the holder of the receipts was made a party, and the wool remained in the custody of the sheriff. It was held that interest should be allowed the plaintiff from the date of demand, where the claim of the trust company was unfounded. Follett Wool Co. v. Utica Trust & D. Co. 84 App. Div. 151, 82 N. Y. Supp. 597.

In Crossley v. Hojer, 11 Misc. 57, 31 N. Y. Supp. 837, in an action of replevin to recover certain goods and chattels, where the question in dispute was the amount of damages, the court said: "In trover, the value at the time of conversion, with interest, is the measure of recovery. In replevin, the successful party can recover the possession of the property, with interest on its value, and the amount of the depreciation thereof, as damages for detention."

North Carolina.-In an action of claim and delivery, it was held that the jury, in their discretion, could allow interest, as damages, on the value of the property from the time it was taken. Patapsco Guano Co. v. Magee, 86 N. C. 350. It was said that North Carolina Rev. Code, chap. 31, made no provision for interest in actions for trover or trespass de bonis asportatis.

Ohio. In an action of replevin from a sheriff holding property under execution, it was held that if the issue were found for defendant, and the value of the property were greater than the execution, the damages would be the amount of the execution, with interest and costs; but that if the value of the property were less than the amount of the execution, then the rule of damages. would be the full value of the property. Jennings v. Johnson, 17 Ohio, 154, 49 Am. Dec. 451.

The ordinary rule is applied in Pennsylvania. Collins v. Houston, 138 Pa. 481, 21 Atl. 234.

In M'Donald v. Scaife, 11 Pa. 381, 51 Am. Dec. 556, which was an action of replevin, it was held that the ordinary rule was to give damages for the value of the goods taken, with interest on the value; yet, the jury might give exemplary damages under peculiar circumstances.

Tennessee.-Under Tenn. Code, § 3390, providing that in replevin, if the jury find for defendant, the judgment shall be for the return of the property; or, on failure, that the defendant recover its value with interest thereon, and damages for its detention, it was held that the value at the time the property was taken from the defendant should be adopted. It was also held that whatever the jury might find in regard to damages for the detention, the defendant was entitled to interest upon the value as a matter of law. Mayberry v. Cliffe, 7 Coldw.

118.

The general rule is applied in Texas. Halbert v. San Saba Springs Land & LiveStock Asso. (Tex. Civ. App.) 34 S. W. 636; Gillies v. Wofford, 26 Tex, 76.

And Wisconsin. Wadleigh v. Bucking

ham, 80 Wis. 230, 49 N. W. 745. The court said: "The measure of damages which this court has laid down in numerous cases of this kind is the legal interest on the value of the property while it was unlawfully detained, and compensation for any depreciation, if any, of the property replevied." And in Bigelow v. Doolittle, 36 Wis. 115, the court held that the same rule applied as would be the rule in trover.

Where property was replevied from an officer holding it under execution, if the defendant recovered, and the value of the property was greater than the amount of the execution, it was held that the amount of his recovery should be limited to the amount of the execution, with interest and costs. Booth v. Ableman, 20 Wis. 21, 88 Am. Dec. 730.

In the same case (20 Wis. 602), it was held that the measure of damages was the amount of the judgment, with interest to the time of replevin, with interest on that amount for detention.

Where a party obtained a judgment in his favor for the detention of goods replevied, it was held that interest on the value of the goods unlawfully taken ordinarily formed the proper measure of damages. But it was held error to make no distinction between damages for the detention before the service of the writ and after service. Graves v. Sittig, 5 Wis. 223.

Wyoming. Interest as damages for detention in replevin where the property was delivered to the plaintiff was held proper. First Nat. Bank v. Ludvigsen, 8 Wyo. 230, 80 Am. St. Rep. 928, 56 Pac. 994, 57 Pac. 934.

A verdict in replevin for the value proved with interest, was held not excessive, in Boswell v. First Nat. Bank, 16 Wyo. 161, 92 Pac. 624, 93 Pac. 661.

Interest and the value of the use cannot both be obtained.

Where the plaintiff secured possession of property, in replevin, an instruction that if the jury found for defendant, they must find the actual damage by reason of the detention of the property, and also the actual value of the property, and also interest on the actual value from the time the property was taken, was held erroneous in regard to interest. McCarty v. Quimby, 12 Kan. 494.

Where 8,000 goats were killed on an island leased from Mexico, and an action for claim and delivery was brought for a large number of goat skins taken by defendant, it was held that a judgment allowing $1 as damages for the detention of the property, and interest on the value from the date of taking, was erroneous under Cal. Code Civ. Proc. § 667. Garcia v. Gunn, 119 Cal. 315, 51 Pac. 684. The court said: "If interest from the time of the tak ing can be allowed, which we do not decide, it cannot be allowed except as damages for the detention, and in the present case that damage was fixed at $1."

In an action of replevin for two mules and a harness, and damages for each day the

same were detained, it was held that plaintiff was entitled to recover the value of the use. but that interest should not be the basis of computation. Morgan v. Reynolds, 1 Mont. 163. The court said: "The plaintiffs were entitled to the value of the use of these mules and harness. It is true that in actions in the nature of trover, the value of the article converted, together with legal interest thereon from the time of conversion, is the true measure of damages. In trover, the plaintiff seeks to recover a moneyed judgment, and it would be proper to allow him only the value of the use of that money which the law declares to be legal interest. This is, however, an action in the nature of replevin. The plaintiff seeks to recover primarily the specific property detained; and it would seem to me to be but just that he should recover the value of the use of the property so detained as compensation."

It

ages, we can see no ground for making 6 per cent interest on the sworn value the rule, and his Honor erred in adopting it. The earnings of the boat might be more or less. As it does not appear whether the boat is in a condition to be surrendered, or has been destroyed, and this may materially affect the question, we give no opinion in regard to it, further than to say that the plaintiff is entitled to damages as well for the taking as for the detention, and has a right to full indemnity for the injury done to him."

Under Tenn. Code, § 3390, it was held that if the plaintiff gives up the property on a verdict for the defendant, the latter will not be entitled to interest on the assessed value; or, in other words, the judgment for value and interest would be discharged by giving up the property. Smith v. Roby, 6 Heisk. 546.

The owner is entitled to recover the value of the use of the property, if he prefers it to interest. Farrand v. Board of Church Extension, 18 Utah, 29, 54 Pac. 818.

So, in an action of replevin, it was held that the measure of damages for wrongful detention was usually the interest on the value of the property when wrongfully detained; but where the property has a usable value, the value of the use, when so detained, was held to be the proper measure of damages. Werner v. Graley, 54 Kan. 383, 38

Pac. 482.

In an action of replevin where the plaintiff succeeded, an instruction that he was entitled to recover the reasonable value of the use of the goods recovered was held to be proper, as he did not sue on the debt, but for the possession of the property, and was not required to sue for interest on the debt. Barton v. Mulvane, 59 Kan. 313, 52

In Allen v. Fox, 51 N. Y. 562, 10 Am. Rep. 641, which was an action to recover the possession of a horse, and damages for its detention, it was held that the defendant, who recovered, was entitled to prove and recover the value of the use of the horse. The court in this case reviewed the previous cases, and held that where the property has usable value, interest is not the measure of damages, and said: "In many cases interest on the value from the time of the wrong ful taking would be a proper measure. would be generally in all cases where the property detained was merchandise kept for sale, grain, and all other articles of property useful only for sale or consumption. In such cases, if the owner recover the interest on the value of his property from the time he was deprived of it, he will generally have a complete indemnity unless the prop erty has depreciated in value, in which case the depreciation must be added to the inter-Pac. 883. est on the value, taken as it was before the depreciation, and the two items will furnish the amount of the damages. This damage, together with the property or its value at the time of the trial, will give the owner a complete indemnity, as the law is generally able to give any person seeking redress for a wrong. But the same measure of damages would not generally furnish the owner an indemnity in case the property claimed had a value for use, in other words, a usable value, such as horses, cows, carriages, and boats."

Where the plaintiff took household furniture by writ of replevin, and the defendant did not have the use of other property, and the plaintiff was nonsuited, it was held that an instruction that the measure of damages was the interest on the money value of the property during its detention was properly refused, as the jury could award such damages as they would be satisfied the use of the property was worth. Boston Loan Co. v. Myers, 143 Mass. 446, 9 N. E. 805.

In replevin for a horse, a verdict was found for defendant and damages for detenIn Twinam v. Swart, 4 Lans. 263, which t .l. In the absence of statute, it was held was an action of replevin for a horse against that the damages must be assessed according a purchaser at a constable's sale, it was held to the magnitude of the injury he had susthat the measure of damages was ordinarily tained, agreeably to the rule of common the interest on the value of the property law; this was the instruction of the court. from the time of taking to the time of as- It was contended that it came within the sessment. In this case it was held there was statute, and the jury should have been inno difference between actions of trover and structed to consider 6 per cent on the rereplevin, and that the plaintiff was not en plevin bond as the measure of damages. titled to damages for the use of the horse. Bruce v. Learned, 4 Mass. 614. It was held In Allen v. Fox, supra, the case of Twi-that there was no statute, and the rule connam v. Swart, supra, was overruled. tended for did not apply.

In Scott v. Elliott, 63 N. C. 215, it was An action of replevin was brought for held that an instruction directing an allow- a trunk and contents, consisting of bank ance of 6 per cent interest was error. The bills and bonds. The verdict was taken for court said: "As to the measure of dam-defendant because improperly brought. It