Page:North Dakota Reports (vol. 2).pdf/464

 the first assignment of errors. The jury also gave plaintiff damages for the detention of his property in the sum of $200. Appellant insists that when the defendant in claim and delivery gives the proper undertaking, and retains possession of the property, the rule of damages is the same as for conversion, to-wit, interest on the value of the property. In some jurisdictions, where the officer's return shows that he cannot get possession of the property, either because it is beyond the jurisdiction, or because of a counter bond executed by defendant, the action ceases to be for possession. The plaintiff no longer pursues the specific property, but the action is in damages for the value, and defendant cannot satisfy the judgment by delivering the property. In such jurisdictions the plaintiff recovers interest on the value, instead of the value of the use. 3 Suth. Dam. 541 et seg. But such cannot be the rule in this state. Here the bond given by defendant is conditioned for the delivery of the property to the plaintiff, if such delivery be adjudged, and, if plaintiff recovers, he takes an alternative judgment. He has the right to insist upon delivery, if a delivery can be had, and on the other hand the defendant has the right to insist upon delivering the property in satisfaction of the judgment for value. Plaintiff's ownership continues during the proceedings; and, being the owner, he is properly entitled to the value of the use of his property wrongfully detained from his possession. In this case it is certain that the amount of damages found by the jury was in no manner affected by the mistake in considering the note. All the evidence of damages pertained to the value of the use of certain teams and machinery, and expense of replacing certain seed grain.

From these views, it follows that the trial court must be directed to modify the judgment for the value of the property by deducting therefrom the value of the note, to-wit, the sum of $650; and as thus modified the judgment of the district court will be affirmed. Appellant will recover costs in this court. All concur.

, J. A rehearing was granted in this case upon appellant’s application, and the question as to what is the