¶1By the Court,
¶2The written contract between the parties being silent on the subject of the increase of the cows during the term, the legal right to the same must be determined by the relation the parties sustained to each, other in respect to the cows during that time. The contract seems to make the defendant a bailee of the cows for hire. They were let to him as a part of the condition of the lease of the farm, and he was also bound to deliver to the plaintiff in consideration therefore, one-half of all butter made from the cows. He was not a gratuitous bailee. In a similar case in Vermont, where a man let his farm for one year, and by the contract was to provide a horse for the lessee to use upon the farm during the term, and the lessor having furnished a horse at the commencement of the term, it was held that the lessee acquired a special property in the horse by the bailment, and was entitled, when the lessor had taken him away during the term, without providing another, to recover in an *145action of trover for the horse, against the lessor, damages, for. the loss of the horse during the residue of the term. Hickok v. Buck, 22 Vt. 149.
¶3“ Where animals are let for hire, their increase belongs to the person who hires them, unless it be otherwise agreed at time the contract is made. It is otherwise however where they are lent. In that case the owner is entitled to the increase.” 8 John, 432; 12 John, 314; 9 Cow., 587; Cow. Treat., 4th Ed. § 587, p. 227.
¶4Under this rule, therefore, the defendant was entitled to the increase of the cows, during the term, and the said animals, being said increase, having been replevied by the JPlaintiff, and the defendant having receive a return thereof to which he was entitled, <fce.. elected, under the statute, (§ 5038, C. L ,) to take judgment for the value of the property replevied, the same will be assessed by the court and judgment, entered in his favor accordingly.