This was an action of replevin, and it comes to this court on error for the review of a judgment in favor of the defendant’ below. It is conceded that the property described in the petition, consisting of one team of mares, one wagon,- and 'one set of double harness, was taken upon the writ and delivered to the plaintiff. The verdict of the jury was as follows: “We, the jury duly impaneled and sworn to try the issues in-the above entitled action, do find for the de*529fendant, R. Thompson, upon the issues joined in this action; and we do further find that said defendant, L. Thompson, had the right of property and the right of possession of, in and to the one team of iron-gray mares, one Studebaker wagon and one set of double harness in controversy, at the time of the commencement of this action; and we do further find.and assess as right and proper damages to said defendant for the value of said property in the sum of two hundred dollars, and as the damages for the unlawful detention-of said property since this action was commenced in the sum of one hundred thirty-six and 90/100 dollars, being a total of three hundred thirty-six and 90/100. dollars awarded by the jury as the damages -of said defendant.” Judgment was entered upon the Verdict for the total amount of the damages assessed.
It is contended by counsel for plaintiff in error that by the verdict and judgment the defendant was erroneously awarded damages for the wrongful detention of the property based upon the value of its use. It is urged in support of that contention that our statutes do not authorize a recovery by a defendant in replevin of damages for the detention of the property taken; that a clear distinction in that respect is found in the statutes between the damages recoverable by the plaintiff and those allowed in favor of the defendant; and that the defendant’s recovery cannot exceed the value of the property, when it has been delivered to the plaintiff, with interest upon such value as upon a debt.
A defendant in replevin may within forty-eight hours from the time the sheriff levies the writ - upon property described therein, execute with sufficient, sureties a written undertakng to the plaintiff, in at least double the value of the property taken, to the effect that the defendant will deliver the property to the plaintiff if such delivery be adjudged, and will pay all costs and-damages that may he awarded against him; and thereupon the sheriff is required to redeliver the property so taken to the defendant. (Comp. Stat. 1910, Sec. 501 x.) If such an undertaking is not furnished by the defendant, then it is required that the sheriff *530deliver the property taken to the plaintiff upon the execution by sufficient surety of the plaintiff of a written undertaking, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him. When, however, the property taken consists of an heirloom, personal keepsake, or other article the value of which is not wholly1 in its general marketable character, but consists in whole or in part of its being a relic, model, gift, family picture, painting or rare production of art or nature, the sheriff is required to retain and safely keep the property subject to the order of the court. (Comp. Stat., Secs. 5010, 5011.)
When the property has been delivered to the plaintiff, or remains in the hands of the sheriff, if the jury, upon issue joined, find for the defendant, they are also required to find “whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant against the plaintiff and his sureties.'” (Comp. Stat., Sec. 5017.) And when judgment is rendered against the plaintiff on demurrer, or he fails to prosecute his action to final judgment, it is provided that “the court shall, on application of the defendant, assess to defendant proper damages, including damages for the right of property or possession, or both, if he prove, himself entitled thereto, or cause the same to be done by a jury, for which, with costs of suit, the court shall render judgment for the defendant.” (Id., Sec. 5015.) Thus, when the property is delivered to the plaintiff under the provisions of Sections 5010 and 5011, “the plaintiff’s undertaking stands in the place of the property to the extent of the defendant’s interest, and . the property passes into the exclusive possession and control of the plaintiff.” (Boswell v. Bank, 16 Wyo. 161.) In other words, as stated by the Supreme Court of the United States in a case heard on error to the Supreme *531Court of Wyoming Territory: “The delivery of the property to the plaintiff passes the title to him as against the defendant, who must look for his protection to a recovery in damages, if the writ is wrongfully sued out.” (Gregory v. Morris, 96 U. S. 619, 624.)
The plaintiff’s recovery is regulated by the provisions of Sections 5016 and 5018, Compiled Statutes. The former provides that when the property is delivered to the plaintiff, or remains in the hands of the sheriff, if the jury, upon issue joined, find for the plaintiff, and upon inquiry of damages upon a default, they shall assess adequate damages to the plaintiff for the illegal detention of the property, for which, with costs of suit, the court shall render judgment for the plaintiff. It is provided in Section 5018 that when the property is not taken, or is returned to the defendant for want of an undertaking by plaintiff provided for by Section 5010, the action may proceed as one for damages only, and plaintiff shall then be entitled to such damages as are right and proper. The proper judgment to be entered where the plaintiff recovers and the property has been redelivered to the defendant upon his giving the undertaking provided for in Section 5011, was considered in Boswell v. Bank, supra.
Since the statute expressly provides that damages for the illegal detention of the property may be assessed when the finding is for the plaintiff, and the property has been delivered to him or remains in the hands of the sheriff, and does not so expressly provide as. to damages which may be recovered by the defendant, but that when the finding is in his favor damages which are “right and proper” shall be assessed, it is contended by counsel for plaintiff in error that the legislature has determined that damages for illegal, detention are recoverable only where the plaintiff is successful under the conditions specified in Section 5016, and that this excludes the right to assess such damages to the defendant in any case. Opposing counsel, on the other hand, suggests that by analogy the rulé prescribed in Section 5016 should be applied in enforcing the provision of Section 5017'for the assessment of “right and proper” damages' in *532favor of. a successful defendant. But we do not think Section 5016, regulating plaintiff’s damages when he succeeds in the action, .is to be regarded as controlling the damages to be assessed where the finding is for the defendant, nor that the provision allowing the plaintiff to recover damages for illegal detention necessarily excludes the right of defendant to such damages. The defendant’s right to damages, under- the circumstances of this, case, is fixed and determined by the provision of Section 5017, that the jury “shall assess to him such .damages as they think right and proper, for which, with costs of suit, the court shall render judgment for the defendant.”
At common' law a defendant in an action for replevin might have a return of the property upon establishing his right thereto, but he could not recover damages or costs. Statutes were enacted to remedy such unequal and unjust' condition, whereby the defendant was allowed damages and costs in case he recovered. The right of a defendant to damages, therefore, and the extent or measure of .that right, depends upon the particular statute authorizing such a recovery. Our statute allows him to recover such damages as are “right and proper.” Construing this statute, it was held in Gregory v. Morris, supra, by- the Supreme Court of-the United States, that if entitles the defendant to such damages as are “right and proper under the circumstances.” That is clearly the natural and obvious meaning of the provision; and it contemplates that the defendant shall have adequate compensation for. the injury sustained by the wrongful act of the plaintiff. It was so held in Nebraska upon a consideration of the same provision in the statutes .of that state, the court saying: “The code means that he shall be fully compensated when it says -that he shall have such damages as are' right and proper.” (Schrandt v. Young, 62 Neb. 254.)
The universal and paramount principle underlying all rules on the subject óf compensatory damages is, that the person injured shall receive a compensation commensurate *533with his loss and no more. Such rules “are but aids and means to carry oút this principle; and when in any instance they'do not contribute to this end, but operate to give less or more than just compensation for actual injury, they aré either 'abandoned as inapplicable, or turned aside by an exception.” (1 Sutherlahd on Damages, 17, 18.) Notwithstanding that the legal effect of the statutory provisions, where the property is delivered' to the plaintiff upon' his giving the undertaking authorized by Section 5010, is to pass the title and control to the plaintiff, the value of the property may not alone constitute full or adequate compensation to the defendant, in case it is found that he had the right of property and the right of possession. The detention in such case as well as the taking is included in the wrongful act, and may properly be considered in assessing such damages as are right and proper. And so we think that the statute clearly authorizes a recovery by a successful defendant of damages for the wrongful detention, where the circumstances are such that he'would not-otherwise be fully compensated. It may be that interest upon the value will afford adequate compensation for the detention-, and that the value with interest will constitute the proper measure of the damages to be assessed. But, if so, interest is allowable in addition to the value of the. property as damages for the injury sustained through the' wrongful act of the plaintiff, rather than upon the theory that the relation of debtor and creditor exists between .the parties entitling the defendant to interest as upon a debt. “Interest is allowed as a legal compensation for lost use.” (Cobbey on Replevin, 2nd Ed., Sec. .885.) -
Ordinarily interest upon the value during the time ■ the successful party was deprived of the property is the proper measure of damages for the detention, but' it is not always or necessarily so. Where the property-is valuable-for its use, the value of its use may be recovered instead of interest. (3 .Sutherland bn Damages, 559, 560; Cobbey on Replevin, 2nd Ed., Sec. 886,; Shinn on Replevin, Sec. 646; *53424 Am. & Eng. Ency. E., 2nd. Ed., 522; 34 Cyc. 1560-1562.)
In the section cited from Cobbey on Replevin, it is said: “It is true that interest on the value of the property wrongfully detained is sometimes considered the proper measure of damages in replevin cases, but it was never regarded as limiting the amount of the damages which might be allowed, and in the nature of things it should not be.” And in Section 887 the author says: “In the case of work-cattle or horses, tools or implements of trade or husbandry taken from the owner, who is thereby deprived of their use, the reasonable value of that use will in 'most cases be the only just compensation for their detention.” (See also Sec. 888.)
It has been held that where a defendant elects, under a sfatute authorizing it, to take a judgment for value instead of the return of the property, he is limited in his recovery to the value and the interest thereon. The ground upon which that has been so decided is that by such election the defendant, in effect, makes a sale of the property to the plaintiff at the date of its taking, so that the value with interest up to the date of the verdict is a fair compensation. In other words, the defendant in such case, having the right of election, • waives the wrongful act, like a plaintiff who sues in trover. (Just v. Porter, 64 Mich. 565; Becker v. Staab, 114 Ia. 319; Bigelow v. Doolittle, 36 Wis. 115.) In the Michigan case the court say: “If he prefers to take the property, and the value of its use while detained, he can do so. The option is his, and not the plaintiff’s. There is no justice in his taking the value of the property, selling it to the plaintiff against his will, and also charging him with the use of it in addition.”
It is contended that the rule so adopted should be applied here, since the defendant is not entitled to a return. But there is a substantial difference between our statute and one requiring the defendant to elect whether he will take a judgment for the raturn of the property or its valué. In *535the latter case, where there is an election to take a judgment for value, the defendant by his own act waives his right' to a return, and, therefore, it may be proper to confine his compensation to the value with interest. Under our statute the ’ defendant has no option to exercise. It is true that he is limited in his recovery to damages; but that is because the statute so declares, and it is not dependent upon any act of the defendant.’ The position of the plaintiff is the result of his own act in taking the property and securing its delivery to him. Though the statute provides for recovery by the defendant of damages only, it prescribes that the damages shall be such as are right and proper, and no good reason is perceived for holding that he is confined to interest as damages for the detention, if he establishes the fact that the value of the use of the property of which he was deprived through no act or election on his part exceeds the interest.
It was at one time held in Nebraska that a defendant in’ replevin was entitled to damages for detention only when the property was returnéd to him, and that if a verdict is for the value, “the action in that respect being one for damages only, the measure of damages is the value of the property as proved, together with lawful interest thereon.” (Romberg v. Hughes, 18 Neb. 579.) In that respect the case was overruled in Schrandt v. Young, 62 Neb. 254, where the question is considered in an able opinion by Judge Pound. In that state, when the defendant recovers, an alternative judgment is required for the return of the property, or, if return cannot be had, for the value or value of possession, and for damages for withholding the property. As said in the opinion in the case last cited, the election to return or pay the value is left practically to the plaintiff, and it is further said: “The rule in Romberg v. Hughes is not required by, nor has it any support from, the statute or the authorities, and has been cited only to be received with doubt. * * * Nor is it sustained in a jurisdiction like ours, where the defendant is not required to elect whether *536to claim return or'value, by'the suggested analytical distinction between replevin .and trover:” Further, it is said : “If the value of the -use exceeds the interest, it is unjust that the defendant, who was entitled to and deprived of the use, should be required to take the'interest only; and it is equally inequitable to allow tire plaintiff by merely paying the value óf' the property and the interest, to retain the difference between the interest and the value of the use of the property.”
The evidence is not here, but it is evident that the amount allowed as damages for thé detention exceeded the interest, since less than a' year intervened between' the time when the suit was commenced and the date of the verdict, and it is conceded that the assessment of- such' damages was básed upon the value of the use of the property. For the reasons stated, the judgment is not objectionable on that ground. Having thus disposed of the only objection urged against the verdict and judgment,'it is unnecessary to consider the points suggested by counsel for defendant in error relative to the sufficiency of the motion for new trial to raise the question. The judgment will.be affirmed.
Beard, C. J., and ScoTT,'J., concur.