On Motion for Rehearing.
We deem it advisable to refer to- a question presented in this motion which has not been assigned as error, and is claimed to be a fundamental one. It is that thp judgment rendered on the replevin bond does not fix the valtie of the different items of property separately, nor was there any evidence at the trial of the cause as to the separate value of the pieces of property. That such form of judgment is contemplated and secured to the defendant by article 4877, Rev. St. 1895, is plain, in order to enable the defendant to exercise the right of restoring part of the property.
The testimony adduced at the trial is not before us, but we may assume, as appellants state, that no testimony of separate value was given. The provision is for the benefit of the party who replevies, and we think he may waive its benefits, which he does effectually by not assigning such matter as error. The matter is not fundamental. There are opinions in cases in this state, which go to the extent of holding that the statute is mandatory; but the matter seems always to have been complained of by assignment of error. That it is not a matter that, in its very nature, demands a reversal of the judgment, is practically held in Cole v. Crawford, 69 Tex. 124, 5 S. W. 646.
Motion overruled.