¶1This is a suit on a replevin bond. One-William R. Bowes sued out a writ of replevin from the circuit court for the county of Muskegon against Ryan to recover certain bark which Ryan had levied on by virture of attachment proceedings against Philip A. Wooley. The case went against Bowes by default, and *517Ryan’s right was ascertained as a lien under these attachment proceedings, and judgment went in his favor for $381.30 for damages and-costs. The proper steps having been taken to authorize suit on the replevin bond, a defense is set up denying Wooley’s title to the property levied on.
¶2The court- below allowed evidence to show that Wooley took this bark as a trespasser from lands of other persons, Bowes being alleged to be owner of a part, and certain other persons of other parts. The jury were directed that if this was shown it was a sufficient defense ■ to defeat the action on the bond, and that it was not necessary to show that the sureties in the bond had any interest in the property.
¶3It is very doubtful whether there was any sufficient evidence to show the interest of Bowes. But assuming that there was such evidence, we do not think the defendants were in any position to set it up.
¶4The title of Wooley, as sufficient to authorize a levy as against Bowes, was certainly determined as against Bowes by the verdict and judgment in the replevin suit, so to bind him and his sureties on this record, whatever may have been the facts which he failed to show in that controversy. The statute (Comp. L., § 6765) makes the amount of the judgment in such eases the measure of recovery under the replevin bond, unless modified by § 6766; That section provides that in an action on a replevin bond for the deliverance of any property the defendants may show in mitigation of damages that the obligee had only a lien or special property or part ownership at the commencement of the replevin suit, and1 that the defendants, or either of them, had a part ownership or some interest therein, and if the obligee’s interest is less than the value of the whole property replevied -a corresponding deduction shall be made from such value..
¶5This latter section it is quite evident only applies to’ eases where the obligee in the replevin bond has taken, judgment for a return of the property, and sues on the *518•bond to recover its value. • It cannot apply to a case ■where the value of the property is not sued for. The statute in most cases allows a defendant prevailing in replevin to waive a return and have an inquiry into his damages, and when this is the case, his interest is ascer-. tained and his true damages assessed. Comp. L., §§ 6754, 6759.
¶6In the case before us a return was waived, and an inquiry had into the special property of Eyan. Upon, that inquiry, as already suggested, the "whole merits of, his claim were open to investigation, and his rights bé-! came fixed against Bowes by the verdict and judgment.' That being the case, section 6765 makes the same amount the measure of damages on the replevin bond, and no. other statute provision changes or affects this rule. •
¶7In Lindner v. Brock, 40 Mich., 618, which was supposed by defendants in error to countenance the rulings below, the sheriff took judgment of return, and a writ de retorno habendo was issued and returned partially unsatisfied, and suit brought on the bond for the value of the property not returned. It was thus brought distinctly within section 6766.
¶8The court erred, therefore, in allowing proof to be-given in reduction of the judgment in replevin. The-judgment must be reversed with costs, and a new trial1 granted.