delivered the opinion of the Court:
It will be apparent at once that tbe question for determination is .as to tbe measure of damages under tbe facts disclosed. Tbe plaintiff insists, and her view evidently was adopted by tbe trial court, that the measure of damages was the value of the goods at the time of the levy. The defendants contend that if the jury should find that the vendee in the bill of sale, prior to the actual levy, asserted his right to possession, that right being paramount to the right of possession of Mrs. Lane, she could recover nothing in this action. The second contention of the- defendants is that, even if the jury should find that Mr. Van Senden did not assert an immediate right of possession, they should not be compelled to pay damages after he had asserted "liis paramount title and taken the property from the possession of the marshal.
Until Mr. Van Senden asserted his right to possession, Mrs. Lane was entitled to the possession of this property. Any unauthorized disturbance of that possession entitled her to damages. As possession is the foundation of her action, it follows that the fact of possession was vital to her right of recovery at all, That Mr. Van Senden might assert his right to possession at any time must, of course, be admitted. If, therefore, the jury should find that he asserted that right, that is to say, if they should find that he, having the legal title to this property, declared his intention immediately to take possession of it, then the marshal did not disturb the possession of the plaintiff, and should not be mulcted ip damages in this action. Under such *349conditions it would have been the possession of Mr. Van Senden that was disturbed, and not that of the plaintiff. It has been held that where a sheriff attached property nnder a valid attachment, and, while still holding the property, attached it on a second writ, he was not liable for conversion, although he had no right to make the second attachment. Page v. Carpenter, 10 N. H. 77; Luce v. Hoisington, 54 Vt. 428. These cases illustrate the idea that courts deal with facts, and not fictions. Theoretically, in the cases cited, the officer would have been liable, for his second levy was unlawful; practically, having possession of the goods under a valid attachment, another levy under an invalid attachment could do no harm so long as the former remained in force. Here Mr. Van Senden could do no more when the deputy appeared than assert his right to possession. If he asserted that right, the right of possession of Mrs. J.ane constructively terminated, and thereafter, as above suggested, it was the possession of Mr. Van Senden that was disturbed, and not hers. We think, therefore, that it was error to refuse to instruct the jury that if they should find that Mr. Van Senden asserted his rigid; to immediate possession the plaintiff could not recover.
There being a conflict, in the evidence as to whether Mr. Van Senden did more than merely indorse the statement of the; Lanes as to the effect that the property belonged to Mrs. Lane, and that he held a bill of sale in the nature of a chattel mortgage on it, we will now proceed to a discussion of another phase of the case.
While the authorities are hv no means uniform upon the subject, we think the general rule to he to the effect that, in the absence of fraud, malice, oppression, or other aggravation, damages are to he measured by the actual injuries suffered. It is evident that a different policy might result in injustice, and tend to deter suitors from adopting and pursuing in good faith forms of law for the assertion of their rights. In the early case of Mansfield v. Sumner, 6 Met. 94, it was ruled that where an officer sells attached goods on mesne process, and after the suit on which they were attached is dismissed, and the defend*350ant in that suit brings an action against the officer to recover the proceeds of the goods, the officer may defend by showing that the goods were the property of a third person, who has recovered or demanded satisfaction of him for seizing them. The ■ court-said: “Now, when an officer is commanded by his precept to attach the goods of A, if he attach the goods of B, he is liable to the latter in an action of replevin or trespass. If such an action be brought, and the goods or their value be recovered against him, he must be allowed to aver and show that fact in the suit brought against him by the original defendant. Two persons cannot be severally owners of the same goods, at the same time. Showing, therefore, that B, a stranger, had a good paramount title, and that he had recovered or demanded the goods of the officer, is a bar to a suit of the original defendant; otherwise, the officer would be answerable for the goods twice, which would be unjust.” In Shearer v. Taylor, 106 Va. 26, 55 S. E. 7, which was an action to recover damages for a wrongful levy upon property that was in storage, the court held that in such an action the measure of damages, where the property has a usable value, is the value of its use during its detention, and that if it appears that the plaintiff suffered no loss in consequence of the levy, no damages can be recovered; that the object of the law is to give compensation for the injury suffered, and that damages should be restricted to that object. In Wanamaker v. Bowes, 36 Md. 42, the court said: “It is equally clear, both upon reason and authority, that if, after the illegal seizure, the goods had been taken out of the hands of the defendant by legal process, as by execution at the suit of another, or if a distress had been actually levied thereon for rent in arrear, and the goods, or some of them, taken thereunder, such fact could be given in evidence in mitigation of damages.” The court further said that where there has been a wrongful taking of the plaintiff’s goods, the wrongdoer will not be allowed voluntarily to appropriate the proceeds to the payment of plaintiff’s debts, or in any other way apply 'them voluntarily to his use without plaintiff’s consent, but that there is a distinction between such an' appropriation by the'defend ant, and a taking or appropriation *351bv judgment or operation of law. In Gaer, S. & Co. v. Lyons, 99 Ky. 672, 37 S. W. 73, 148, which was an action for the recovery of personal property wrongfully taken under an attachment, and damages for the taking and detention thereof, it appearing that the property was mortgaged, the court ruled that the phiintiff was entitled merely to recover damages for tiie detention up to the date of a judgment of foreclosure, at which time the right of possession ceased. In other words, it was ruled that recovery could not be bad for any period beyond the time when the plaintiff’s “rigbx to the possession of the property terminated.” Porter v. Knight, 63 Iowa, 365, 19 N. W. 282, where an attachment wrongfully sued out was levied upon chattels which the defendant had previously mortgaged, it appeared that the chattels were taken from the officer, and sold under the mortgage for less than their value, the surplus, after satisfying the mortgage, being paid over to the officer. The court held that the attachment plaintiff was not liable for any loss occasioned to the defendant in tbe attachment proceeding by reason of the sale under the mortgage, hut only for the surplus paid over to the officer, with costs, and the value of the defendant’s right, if any, for the use of the chattels from the time of the levy until they were taken under the mortgage.
In the present case, the property was in the custody of the marshal from September 13th to September 18th, a period of a few days, when Mr. Van Sonden, asserting his paramount title, obtained legal possession thereof, and thereafter retained it. Upon what principle of reason or justice can it be said that the damages sustained by Mrs. Lane should be measured by the value of the goods ? It is plain that under such a rule the marshal would have been liable in two separate actions, one by Mrs. Lane for the entire value of the goods, the other by Mr. Yran Senden for the value of his interest therein; and recovery under the latter action could not have been plead in mitigation of damages in the former. Indeed, this is boldly asserted by counsel for the plaintiff. As we stated at the outset, the policy of the law is to protect actual, and not fictitious, rights. If Airs. Lane’s possession of this property was disturbed, she *352should receive reasonable damages for such disturbance; but it would be a perversion of justice, in our view, to deny to the defendant the right to show that Mr. Van Senden, asserting his paramount title, took the goods from the marshal in the suit of replevin.
It has been held that when the owner recovers his property the measure of damages is the expense of procuring its return, and any special damages which may be shown. Hyde v. Kiehl, 183 Pa. 414, 38 Atl. 998; Blewett v. Miller, 131 Cal. 149, 63 Pac. 157; Felton v. Fuller, 35 N. H. 226; Dodson v. Cooper, 37 Kan. 346, 15 Pac. 200. Tinder this rule, had the marshal surrendered the property seized he would have been liable only for the damages occasioned by the previous detention, assuming that the property was not injured by the seizure. But Mr. Van Senden, the legal owner, through the replevin suit asserted his paramount title, the title with which he had been invested by the plaintiff herself, and thus rendered it impossible for the marshal either to surrender possession to the plaintiff, or to hold the property to await the outcome of the attachment proceeding. The moment the real owner seized the property, that moment the marshal’s interference with plaintiff’s right of possession terminated, and plaintiff’s damages should be measured on that basis. The extent of her equitable interest in this property, if any, is now a question between her and Mr. Van Senden. Certainly the marshal has not deprived her of that Interest.
The demurrer to defendant’s fifth plea should have been overruled, and a prayer in harmony therewith granted.
The judgment will be reversed, with costs, and the cause remanded for a new trial. Reversed and remanded.