By the Court,
Cowen, J.In this case the judgment for a return will enable the defendant to recover the value of the logs, if not specifically returned, as it seems they cannot be, for it was in proof that the plaintiff had converted them The object of the writ of inquiry was to assess damages for the detention. This is ordinarily, as in trespass de bonis or trover the interest upon the value of the goods when taken, from the time of the taking to the day of assessing the damages, or perhaps the quarto die post or judgment day of the succeeding term. There are exceptions to this rule, as where it appears in an action of trespass that the goods were taken tortiously, and without color of right. In such case the jury may assess exemplary damages.
It has lately been held at nisi prius, that the plaintiff may recover special damage in trover, where it is laid in the declaration. The defendant had taken the plaintiff’s pony, which was useful to him in the way of his trade; and he was allowed to recover the consequent expense of hiring another horse, deducting from that the amount he would have paid for keeping his own horse during the time. Davis v. Oswell, before Parke, B., 7 Carr. & Payne, 804. It was agreed that the point had never been decided ; and it would be extremely inconvenient, not to say dangerous, to allow a plaintiff to lie still in his trade for such an inadequate cause, and charge the defendant with all the profits of his business upon the conjectural estimate of a jury.
Where the writ of replevin has obviously been perverted to the purpose of a wilful injury, with a full consciousness ia *146the plaintiff that he has no claim, the jury may perhaps assess smart money, as they might for a wilful and malicious trespass. That wpuld certainly be going far enough. It supposes a right to recover damages as for a malicious prosecution ; and to go even thus far would be dangerous unless a malicious replevin be considered as an exception to the rule which allows an independent action for a vexatious suit.
Here was no evidence before the under sheriff that the wrong done by the replevin in question, was any thing more than the honest assertion of a supposed claim by the plaintiffs. That they acted fraudulently, is not to be presumed; but the contrary. Much of the evidence given before the under sheriff was admissible to show the market value of the goods at the time when, and place where, they were taken by the writ. The ultimate value at Albany or Troy, when in the ordinary course of business the boards would reach there, deducting the expense of manufacture and the price of transportation, were proper topics of inquiry, with a view to the ascertainment of value at the canal; but that once being fixed in the mind of the jury, the measure of damages was in this case the legal interest upon such value to the day of the inquisition, or at farthest to the next term. Special damages for interruption in the defendant’s business could not be allowed ; and, therefore, the testimony received with a view to fix their amount should have been excluded. I can hardly suppose a case in which this evidence would be admissible, unless where the plaintiff is shown to have fraudulently brought his replevin for the purpose of working such a mischief. It is enough to say that the damages found here are much too high upon any principle which the jury were authorized to adopt. I cannot collect from the evidence that I he logs were worth over $250 or $260; and the inquisition has, for a detention of that sum about six years, allowed .$452.
The inquisition must be set aside without costs.