Davis v. Fenner ( 1878 )

On the 27th of April, 1868, the defendant replevied from the plaintiff eight horses with harness and wagons. On the trial of the action of replevin, the defendant in that action, who is the plaintiff in this, recovered judgment for return and restoration, and for his damages assessed under the statute, Rev. Stat. R.I. cap. 208, § 7, at the rate of six per cent. per annum in the penal sum of the replevin bond. Afterwards he shed the bond and recovered ten dollars of the defendant for not returning the property "in like good order and condition as when taken." He now sues the defendant in trover to recover compensation for the use of the property while it was detained, the defendant having used it as his own during that time.

Will the action lie? We think not. The defendant has already been indemnified for the deterioration of his property while it was out of his possession, and for the taking and detention of it; for we have no doubt that the damages allowed by the statute; which are twelve per cent. on the value of the property, the bond being taken in double its value; were intended to cover the taking and detention. Nothing, therefore, remains for the plaintiff to recover in the way of damages. He says the defendant used the property, and that he is entitled to compensation for its use. If the defendant had taken the property, without replevying it, and after retaining and using for a while had returned it, the plaintiff might either have sued him in trespass or trover for the damages, or he might, waiving the tort, have sued him in assumpsit for compensation for the use of the property. But he could not have done both. The damages given by the statute are a substitute for such damages, or for such compensation. It may be they are inadequate, but that cannot be helped, unless the statute is unconstitutional, and it is not claimed to be so. Judgment for defendant.