¶1This was an action of debt upon a replevin bond. The declaration alleges the commencement of the action of replevin, the execution of the bond sued on, conditioned for return of the property, if return thereof should be awarded, a trial of the "cause upon issues joined, a judgment for the defendant and for return of the property, the issuing and return of the writ of retorno habendo, and assigns for breach that the defendant has not returned the property, and that the obligors in the bond have not paid the penalty thereof.
¶2The defendant pleaded nil debit, upon which issue was joined, without objection, and a special plea to the action, alleging that the declaration in the action of replevin was in the debinet only ; that the defendant in that action pleaded, 1st, non-debinet / 2d, that the property was not the property of the plaintiff; and, 3d, that the property was not the property of the plaintiff, but that the same was the property of the defendant; that upon said pleas issues to the county were joined; that the cause was tried by the court, and that the court found for the defendant generally, without specifying upon what issue ; that the general ownership of the property was not inquired into or determined by the court; and that at the time of the commencement of said action, the plaintiff was' the general owner of the property, and that at the time of the commencement of this action he was, and still is, the absolute owner, and entitled to the possession thereof.
¶3To this plea the court sustained a general demurrer. Dpon the trial, the defendant offered to prove, in mitigation of damages, the same facts, but the court excluded the evidence. These decisions are assigned for error. The judgment in the action of replevin necessarily determined that the plaintiff in that action (the defendant in this action) was not entitled to the possession of the property, and that the defendant in that action (the plaintiff in this action) was entitled to a return thereof; and to that extent, and no further, are the rights of the parties concerning the property and the ownership thereof, conclusively adjudged and determined.
¶4"Wnatever was in issue in that action, and essential to be found to authorize the judgment, and was, in fact, determined as between these parties, is res judicata, and conclusive upon them.
¶5The defendant in that action was entitled to judgment upon either issue found for him, and to a judgment for return of the property, on a finding in his favor upon either of the issues, asserting property in himself and denying the plaintiff’s right; and to prove these issues on the part of the defendant, it was only necessary to show that the plaintiff had not the right of possession, or that the defendant had a special interest in the property, entitling him to the present possession.
¶6The general ownership of the property was not, therefore, necessarily determined. Anderson v. Talcott, 1 Gil. R. 365; King v. Ramsey, 13 Ill. R. 619; 1 Greenlf. Ev. Sec. 532, and cases there cited.
¶7The right of the defendant, in the action of replevin, to possession and a return of the property, is finally determined ■ by the judgment, and to that extent the matters in the plea alleged cannot be reexamined between these parties. By that judgment the defendant is concluded, and his covenant was broken by failing to return the property according to the requirement of the judgment and his bond.
¶8The plea, therefore, is no defense to the action, and the ■ demurrer was properly sustained.
¶9If the defendant, however, in the assertion and vindication of his supposed rights, and not for fraudulent purposes, or as a mere stranger, replevied the property, the measure of damages in this action is not necessarily the value of the property, but the extent of the plaintiff’s injury by being deprived of such right as he in fact had in the property when return thereof should have been made. •’
¶10If the defendant was the general owner of the property, and has since become the absolute owner, the plaintiff, at the time of the commencement and trial of the action of replevin, having a special property therein, or temporary right of possession only, it would'be inequitable, and would encourage circuity of action, to allow him to recover the full value of the property.
¶11The true question is, what has the plaintiff lost, or to what amount is he injured by the failure of the defendant to return the property ? and to determine this, it is material to know the extent of his interest in the property.
¶12This view is consistent with the principle of recoupment, and the analogies in trespass and trover (except where the action is against one having no right, or a mere wrong doer), where the damages are measured by the. interest of the plaintiff in the" property taken or converted, and is sustained by the following authorities: Wallace v. Clark, 7 Ind. R. 298; Scrugham v. Carter, 12 Wend. R. 131; DeWitt v. Plat, 13 ibid. 496; Higgins v. Whitney, 24 ibid. 379; Jennings v. Johnson, 17 Ohio R. 154; Lloyd v. Goodwin, 12 Smede and M. R. 223; Kaley v. Shed, 10 Met. R. 317; City of Lowell v. Parker, 10 ibid. 309 ; Sedgwick on Measure of Damages, Chap. 20.
¶13Judgment reversed and cause remanded.
¶14Judgment reversed.