[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 175 The judge instructed the jury to find the full value of the property replevied at Buffalo, if they should find for the defendant, and refused to charge that the recovery must be limited to the value of the interest of Holmes therein as part owner. To this instruction and refusal the plaintiff duly excepted. There are two answers to the objections to the charge and refusal: First. Holmes, whom the defendant represented, as joint owner with the plaintiff, and in the lawful possession of the property, could not be deprived of that possession by the act, or any proceeding founded on the right of property in his co-tenant. (2 Mass. R., 509.) The defendant was therefore entitled to a judgment for the return of the property replevied, in order to reinstate him in the possession of which he had unlawfully been divested, by the writ issued at the instance of the plaintiff. The statute "Of the action of replevin" provides "that the defendant, whenever he shall be entitled to a return of the property replevied, instead of taking judgment for such return, may take judgment for the value of the property replevied." (2 R.S., 531, § 55.) The cases to which we are referred by the counsel for the plaintiff, only prove that one having a special interest in property, cannot, as against the general owner or those claiming by his direction, recover more than the value of that interest. (Spoor v. Holland, 8Wend., 445.) In this case, however, the defendant is a carrier, and prima facie responsible to his consignee for the property in dispute, to its whole value. The request for instructions assumes that the defendant represents the undisputed owners of one-half of it, with right to the possession of the whole. If a return had been adjudged, he must have delivered the property according to the directions of his bill of lading, or paid its value. He is not, therefore, protected without a recovery equivalent to his responsibility over.
Second. The jury were authorized to infer from the evidence, that by the agreement between Holmes and Nichols, *Page 178 either of the joint owners, after the hogs were fattened and killed, had the right to dispose of the whole property, accounting to the other for his share of the proceeds; that the sale made by Holmes to Slocum was in pursuance of this arrangement, and vested a title to all the property replevied in the latter. But, however this may be, upon the ground first suggested, we think there was no error in the instructions of the learned judge, or in his refusal to charge as requested by the counsel of the plaintiff.
The judgment of the supreme court must be affirmed.