¶2But we desire to make response thereto, and to elucidate the former opinion in certain respects.
¶3Dr. Mars filed an affidavit that the property had been taken from his possession within thirty days prior to the making of the affidavit and the issuance of the writ of replevin. He testified that he thought he had legal possession of the property, and that he had rented the mules to Hendon.
¶4Both Dr. Mars and W.T. Hendon testified to the making of the demand prior to the filing of the suit, and the refusal to surrender the property on such demand.
¶5It is clear from the record that Dr. Mars did not legally or physically have possession of the property within thirty days prior to the filing of the suit, and by making the affidavit he deprived Hendon of the right to give *173 bond and retain possession of the mules, as he had a legal right to do, consequently Hendon was damaged to this extent, regardless of the right of possession.
¶6If Dr. Mars made the affidavit willfully and maliciously, or with the intent to oppress Hendon, then, should the jury so find, he should be held liable for the value of the mule which died; but if he acted in good faith, although under a false conception of law, he would only be liable for the damage flowing from depriving Hendon of the right to give bond in the first instance, provided he establishes his right to possession of the mules.
¶7In the former opinion, we stated there was direct conflict in the evidence as to whether Hendon rented the mules from Dr. Mars, or whether he sold them to Hendon, and this should be submitted to a jury on a new trial free from the errors there pointed out.
¶8Although we would not reverse on this record for the erroneous admission of evidence that Dr. Mars was indicted for perjury in the justice of the peace court, because, as stated in the former opinion, there was no proper procedure to discharge the jury, it is important to the rights of the parties here that the case be tried anew to avoid impressions that may have influenced the jury.
¶9The suggestion of error will, therefore, be overruled.
¶10Overruled.