ON PETITION FOR REHEARING:
Potter, Justice.A petition for rehearing has been filed in this case and counsel for plaintiff in error has ably and courteously discussed the qüestion .considered in the former opinion, contending that the court erred in holding that, a defendant in replevin, if successful, is. entitled -to recover anything by way-of damages for the detention of the property taken upon the writ; and that he may recover as such damages, under the circumstances stated-in the opinion, the value of the-use of the property instead of interest. -It is earnestly argued- that- under our statutes a plaintiff in replevin- who has acquired possession of the. property taken upon the writ by giving the authorized undertakng cannot properly *537be said to wrongfully detain the same1, and should not, therefore, be held liable to respond in damages as for its wrongful detention. The contention is plainly stated in counsel's' brief that the plaintiff so acquiring possession of'the property becomes the owner of it, and, for that reason, the measure of defendant’s damages when he succeeds in the action should ordinarily be confined to the value of the property with interest thereon, as upon á debt. Counsel seems to concede, however, that there may be conditions where a writ wrongfully sued out will cause damage far beyond the value of the property and the interest thereon, such as where the property is shown to have had a peculiar value to the defendant, as property that cannot be purchased in the open market, or where the defendant through the wrongful suing out of the writ may have been prevented from performing a contract of sale requiring him to deliver the particular property. And we understand from the brief that it is also conceded that the defendant should, under all circumstances, be allowed to recover as damages an amount “commensurate with his loss.” It is, however, insisted by counsel that the case at bar is not one authorizing the recovery of special damages, for the reason that the property taken might have been replaced by purchase in the open market, and the defendant can be fully compensated for his loss by the value of the property with interest thereon, and under the circumstances his recovery should be confined thereto.
It may be said that in this case the defendant alleged b}r his answer that by being deprived of the use of the property during the pendency of the action he was damaged in the sum of $200. Without considering whether the value of the use, if recoverable at all, would be upon the theory of special damages", or whether the allegation of the answer would be sufficient to authorize such recovery as special damages, we proceed to a discussion of the contention of counsel that a plaintiff in replevin after securing the delivery of the property to him cannot be held to wrongfully *538detain it. Counsel is mistaken in supposing that the question may have been decided upon less than the usual careful consideration given to cases in this court, for the conclusion, whether erroneous or not, was reached only after mature deliberation; and, having carefully considered counsel’s able presentation of the case from his standpoint, we reman of the opinion that it was correctly decided.
Why is it that upon plaintiff’s giving the undertaking, which he is allowed by statute to do and thereby obtain a delivery of the property to him, the title is passed to him as against the defendant? Surely not because it is determined by such action that he is the true owner of the property, for that is one of the questions to be decided at the trial, if he claims ownership. The reason is and must be that the statute allows the defendant in such case to recover damages only, if he succeeds upon the trial, and provides only as to the condition of the plaintiff’s undertaking that he shall duly prosecute the action and pay all costs and damages which may be awarded against him. Perhaps it is immaterial whether the damages to be so recovered, in excess of the value of the property and interest, are to be regarded as general or special. Counsel argues that when the plaintiff has so secured the delivery of the property to him, being authorized by law to do so, his detention of the property thereafter is not wrongful. It might as correctly be said that his act in suing out the writ and obtaining possession of the property is not wrongful, for the law also authorizes him to do that. But he is allowed to do that, and thereby keep as well as take the property upon the condition that he shall enter into an obligation to pay all costs and damages that may be awarded against him. And if it be finally determined that he was not entitled to the possession, then clearly it will thereby be determined that his act in suing out the writ and causing the property to be delivered to him was wrongful; and if that act was wrongful, it follows by the same reasoning that the detention would be wrongful. To state it differently and perhaps more accurately, the wrongful suing out the writ results *539not only in taking the property of the plaintiff but also in its detention, or as said in the former opinion, “the detention in such case as well as the taking is included in the wrongful act.”' We understand counsel to concede that damages are recoverable by a defendant for a wrongful suing out of the writ, and that it is for such act only that damages are recoverable. To determine, then, what damages would be “right and proper,” which the statute says may be recovered, it is necessary to ascertain the effect of the act of suing out the writ upon the defendant’s rights. His right as the owner and the one entitled to possession of the property was not alone that of possession at the moment it was taken from him, but also to retain and use it; and of that right he would be divested by the wrongful act of suing out the writ, and should be given full and adequate compensation for the loss of that right. True it is that plaintiff’s act in suing out the writ and securing a delivery of the property to him is authorized by law, but not a law which either provides or intends that the defendant’s property shall be taken and passed to the plaintiff without adequate compensation for the wrong suffered by him in consequence thereof, if it should be found that the plaintiff had no right to .take the property. A law on the contrary which provides and intends that if the plaintiff fails to establish his claim to the property or to its possession the defendant may recover such damages as shall 'be “right and proper.”
Instead of perceiying any injustice in allowing the de» fendant full and adequate, compensation by awarding the value of the use of the property rather than interest, where •the property is shown to have had a usable value exceeding interest, as contended by counsel, we think that great injustice might result in such case from a rule confining the defendant’s recovery to the value of the property and inter-,, est thereon, upon the theory that the plaintiff, by wrongfully pursuing the remedy which the statute has provided for one who finds his property unlawfully in the possession of another becomes in effect the purchaser of the property de*540livered to him and as such the debtor of'the defendant for the value thereof. It may be immaterial whether the interest on the value of the property or the value of its use be referred to as damages for detention, or as an element to be considered in ascertaining the amount of the damages for the wrongful suing out of the writ. We are satisfied that under the circumstances stated in our previous opinion the value of the use may properly be considered in esti: mating the defendant’s damages, in order to award him such an amount as shall be “right and proper' under the circumstances.” He will have been as clearly deprived of such use as of thé property itself, and when the property is shown to have had a usable value exceeding interest he will not be fully and adequately compensated unless such value be allowed him, and we are convinced that the statute authorizes it to be allowed in such case instead of interest.
We are not strongly impressed by the argument that our statute which permits a defendant to give a re-delivery bond and thereby retain possession is analogous to statutes of other states allowing a defendant to elect in case he recovers to either take a judgment for value or for a return of the property, so that his failure to give the bond should be treated as an election on his part, bringing the case within the rule adopted under such statutes that where the election is to take judgment for value the recovery is limited to the value and interest, on the theory that by such election he has in effect sold the property to the plaintiff. The defendant is not required to give a re-delivery bond, though he may do so. Under the statute permitting it he is not as free to act as a defendant who is merely required to say upon recovery at the trial that he will take a judgment for value instead of for the return 'of the property. It may be that his situation is such as to make the giving of .the re-delivery bond impossible. On the other hand, every act of the plaintiff in commencing the suit and giving the undertaking whereby he obtains possession of the property is voluntary on his part. And he takes that action with the knowledge that his obligation and liability' will be to *541pay such damages sustained by his act as may be found to be1 “right and proper.”
To hold'that'the act of the plaintiff in so commencing the suit, suing out the writ,, and obtaining possession of the property, consummates in legal effect a sale of the property to him, thereby limiting the damages of the defendant to the value of the property and interest thereon, as upon a legal sale without express agreement as to price, would put it within the power of anyone capable of giving the statutory undertaking, and against one unable to furnish a re-delivery bond, to force the sale of any personal property to him which he might desire and be willing to pay the market price for against the consent of the'true owner. And even if the true owner in such case, upon his property being so taken from him, might be able to give a re-delivery bond but unwilling to do so, there would be no just reason' in a statute imposing upon "him the penalty of either giving the bond or consenting, by refusing or declining to do so, to the sale of his property at such price as it may be found upon the trial to have been worth, so as to limit his recovery to such value with legal' interest; where he is able to establish that the property had a usable value in excess of the interest of which he has been deprived. And we do not think that our statutes are to be construed to have that effect.
We are satisfied that the case was properly decided and upon a correct principle under our statute as herein explained. A re-hearing is therefore denied.
BuaRd, C. J., and Scott, J., concur.