The defendants’ refusal to return the replevied property, in compliance with the order of the court in the original action, was a breach of the condition of the bond, and judgment must now be for the penalty, although execution can be awarded only for such sum, to be ascertained by the court, as is due in equity and good conscience. Gen. Sts. c. 133, § 10. It is upon the plaintiff to show how much of the penal sum is thus due and payable. Austin v. Moore, 7 Met. 116, 124. This is ordinarily done by proving the actual value of the property replevied. The bond stands in the place of the property. Stevens v. Tuite, 104 Mass. 328, 334. And if the plaintiff is sole owner, or is responsible to a third person, he is entitled to its full value.
For the purpose of reducing their liability, the defendants offered certain facts in evidence, which were excluded by the court, and execution was ordered for the whole value of the property. The plaintiff insists that this ruling was "right, because the judgment in the replevin suit is conclusive between the parties on the question of title. When title to the property in dispute has been put in issue and made the subject of judicial inquiry, the judgment rendered thereon against the plaintiff in replevin is indeed final and conclusive in all subsequent litigation. It cannot be jpened in an action on the bond, at the hearing in chancery to ascertain for what sum execution shall issue. It is too late, in order to prevent the entry of judgment for a return, or to defeat a recovery on the bond, to allege and prove facts affecting the title, which were material to the issue and known at the time. *268An order for a return, as a general rule, follows of course; because, if the defendant in replevin is not the true owner, he is still accountable to such owner. The court will always, however, receive evidence of a change in the legal interest of the party,1 since the commencement of the action of replevin, which makes it improper to order a return, or to allow full damages when it has been ordered, for a refusal to comply. Thus, failure of title or right of possession since the commencement of the suit, or the fact that the property has gone to the possession of the true owner, may be set up as reasons for refusing to order a return. So it may be proved, in mitigation of damages, in an action on the bond, that the original action was defeated solely because it was prematurely brpught, or, in other words, because the property had gone to the true owner. Davis v. Harding, 3 Allen, 302. Barry v. O’Brien, 103 Mass. 520. And in Bartlett v. Kidder, 14 Gray, 449, which was an action on the bond, after the plaintiff in replevin had become nonsuit, and a return had been ordered, it was allowed to be shown by the defendants, in reduction of damages, that the property was held in common by them and the debtor, whose goods the defendant in replevin, as sheriff, had attached ; and the damages were reduced to the value of the interest of the debtor, which was all that the sheriff could rightfully appropriate to the use of the attaching creditor. So where the defendant in replevin has only a special property as against the plaintiff, the fact may be insisted on in reduction of damages ; for, if the value of the property exceeds his claim, he will be liable to the plaintiff for the excess. Schrugham v. Carter, 12 Wend. 131. Sedgwick on Damages (5th ed.) 500, 501. It would seem that any fact, which the defendant is not estopped by the judgment to set up, may in any case be availed of to limit the amount for which execution should equitably issue against him.
The plaintiff insists that the original judgment and order for return in this case is conclusive in his favor, on the question of his sole ownership of the property ; and that the facts now relied on in reduction of damages cannot be proved against him. This depends on how far in that action the question of title was involved. A judgment is conclusive by way of estoppel only as to *269facts without the existence and proof or admission of which it could not have been rendered. And in this case, proof of the present plaintiff’s sole ownership was not necessary to defeat the original action against him. It is always a good defence in an action of replevin, that the defendant is tenant in common of the property with the plaintiff, and therefore has a right equally with him to the possession of the whole. Upon a judgment in his favor, as there can be no division of the common property, he is entitled to a return of the whole. The judgment for a return, as we have seen, is not conclusive as to the liability on the bond for the full value of the goods replevied, and does not determine the amount of the plaintiff’s interest in them. But in an action on the bond, the rights of the parties are capable of adjustment, and the amount to be recovered must be limited in equity and good conscience to the value of the plaintiff’s interest. The judgment is only conclusive on the question of the joint ownership, and unless the defendants are permitted, in this action on the bond, to avail themselves of their interest, we might fall into the inconsistency of requiring the payment of money by those to whom, as owners, it must at once be restored.
It is evident, from these considerations, that the facts offered should have been admitted in evidence, so far as they have a tenlency to prove that the plaintiff was a member of an unincorpo-tted society, and as such was only interested as owner of the property to the extent of his subscription to the fund, while the other members, who are these defendants, owned the remaining interest'jointly with him. There are, however, other agreed facts in the case, which have a tendency to prove that the defendants parted with their right to the property, or to its immediate possession and control, by gift to the plaintiff, or to the religious society of which they were members, for the use of the parsonage, so that the plaintiff, if not sole owner or having a right to the exclusive use of the property, may still be responsible over to others. The question, whether, on all the evidence, including that excluded at the hearing, the plaintiff was the lawful possessor of the whole property, is a question of fact, which must be de sided in the court below.
Case to stand for hearing.