¶1delivered the opinion of the court.
¶2The proceedings in this action, which under common law forms would have been replevin, are regulated solely by the statute. Where the plaintiff is nonsuited, a writ of inquiry must issue to ascertain the value of the property, if the plaintiff has possession of it, and to assess the damages for its taking or detention. Where, however, the case is tried, the jury should regularly assess the value of the property taken in case of a finding for the defendant and where the plaintiff is in possession, and should also assess the damages. This can all be done and ought regularly to be done by the same jury. The ascertainment of the value of the property is essential, as the judgment in such cases must be against the plaintiff and his securities, that he return the property taken or pay the value so assessed and the damages and costs.
¶3In this case, under instructions from the court, the jury *362merely assessed the damages in their verdict for the defendant, but did not assess the value of the property. The court, treating the verdict as simply one for the defendant upon the main issue, and disregarding their finding of the damages, refused to set it aside on account of the failure to find the value, but let it stand as a verdict for defendant, and ordered an inquiry to ascertain the value of the property taken, which was accordingly made by the court, neither party requiring a jury.
¶4The proceeding was not regular, but we do not perceive how the plaintiff could possibly be injured by it. The finding for damages against the plaintiff was disregarded, and in the inquiry afterwards had no damages were assessed, but the value of the property was ascertained and a judgment entered for its return or the payment of its value, without damages. The only purpose which the plaintiff could have in view by such a motion would be a new tidal on the merits, and this he demands, not because any error was committed in the trial before, so far as they are concerned, either by the court or jury, but simply because the jury failed to find, as they should have done, the value of the property — a matter which could only be prejudicial to the defendant.
¶5dissenting. I know no law nor practice which warrants the trying one-half of a cause by one jury and the other half by a different jury. If the jury first sworn to try the cause failed to assess the damages, their verdict should have been set aside, and a venire de novo awarded. There was no authority in the court to have summoned a second jury to supply the omissions of the jury first sworn. After the court had determined that there should be a second jury, there was no waiver of the error in consenting that the assessment of damages should be made by the court.