Battle, J.
P. A. Eaton alleged in his complaint that he Avas the owner of five thousand cross-ties, of the value of $750; that they Avere in the possession of H. Gr. Langley; that he was 'entitled to the immediate possession of the same; and asked for the possession thereof, or, if that could not be obtained, their value. After" filing Avith the clerk of the circuit court the affidavit required in such cases, he sued out an order for the delivery of the cross-ties to himself; also a summons for Langley. He caused the summons to be served upon the defendant,, but directed the sheriff to return the order of delivery without service, Avhich aaus done.
The defendant answered the complaint by denying the allegations therein and alleging that he was the owner of the ties.
The issues in the action were tried by the judge and jury. Epon the evidence adduced, the jury found a special verdict, and the judge filed his conclusions of fact, both of which are stated by the judge as follows:
“From the evidence in this case the court finds as follows: (1) That the ties in controversy were cut by the defendant from the east half of section thirty-five, township seventeen north, range three east. (2) That the plaintiff was the owner of said land and the timber fthereon at the time the ties in controversy were cut. (3) That said ties were cut without authority from the plaintiff or any one representing him, and that in so cutting the said timber the defendant was a trespasser. (4) That the defendant in cutting said timber was acting under a Iona fide belief that he was the owner of the said timber, and had a right to cut it, and that he was an innocent and not a wilful trespasser therein.
“And from the answers of the jury to the special interrogatories the court finds: (5) That, at the time this action was begun, the defendant had 3,500 cross-ties, which he had made from said land while the plaintiff was the owner thereof, under the foregoing circumstances. (6) That said ties, at the beginning of this action, were of the value of 12¿ cents eaelN (7) That the timber from which the same were made, while standing, was of the value of 2 cents per tie.”"''
Upon these findings of facts the court rendered a judgment as follows: “It is therefore ordered, considered and adjudged by the court that the plaintiff have and recover of and from the defendant the sum of seventy dollars and all costs of this cause, and that, further, in case the sums of money above mentioned, together with the said costs, are not paid within ten days from this date, the plaintiff shall have and recover of the defendant the possession of the 3,500 cross-ties situated on the east half of section thirty-five in township seventeen north, range three east, and for which writ of delivery in this case may issue.”
After filing a motion for a new tidal, which was overruled, and a bill of exceptions, the plaintiff appealed.
In an attempt to sustain the judgment of the circuit court, appellee insists that this is not an action of replevin or detinue, “but is in the nature of an action of trover or trespass under the common law.” But the name of it is immaterial. The code abolished all forms of action. Let its name be what it may, it is unquestionably an action to recover tbe possession of specific personal property. In such actions the statute provides that the “judgment for the plaintiff may be for the delivery of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention.” Sand. & H. Dig., § 6398. The right to this judgment is in no wise affected by the issue or failure to issue an order of delivery, which is only necessary to enable the plaintiff (upon the execution of the proper bond) to obtain the immediate possession of the property at the beginning or during the progress of the suit, or force the defendant to give bond for its retention, and for no other purpose. Sand. & H. Dig., § 6383, et seq.
The cross-ties in controversy are the product of the timber of appellant and the labor of the appellee. The latter, honestly believing,that he was the owner of the timber, converted it into the cross-ties. The material used in making each tie, as it was in the tree, was worth two cents-,•'and, as it is, is worth twelve and a half cents. Under these circumstances, is appellant the owner of the ties, and entitled to their possession?-'
As a general rule, an owner cannot be deprived of his property without his consent or operation of law. “If unauthorized persons have bestowed expense or labor upon it, that fact cannot constitute a bar to his reclaiming it, so long as identification is not impracticable. But there must be a limit to this right.” Mr. Justice Blackstone lays down the rule very broadly that if a thing is changed into a different species, as by making wine out of another's grapes, oil from his olives, or bread from his wheat, the product belongs to the new operator, who is only to make satisfaction to the former proprietor for the materials converted. 2 Bl. Com. 404. Many authorities have followed this rule, while others have held that, in the case of a wilful appropriation, no extent of conversion can give to the wilful trespasser a title to the px’operty, so long as the original ma-' terials can be tx'aced in the impx’oved article. Weatherbee v. Green, 22 Mich. 311.
In McKinnis v. Railway, 44 Ark. 210, and Stotts v. Brookfield, 55 Ark. 307, it was held that the owner of timber which had been taken and converted by a wilful trespasser into cross-ties may recover the ties or their value in an action of replevin against tbe trespasser. In tbe latter case tbe court said: “While it is difficult to draw from the authorities a rule by which we may detennine with certainty what change in the original property converted will destroy its identity, so that replevin will not lie for its recovery, it is settled that the conversion of timber into cross-ties is not such a change, whether the change has been wrought by a wilful or an innocent wrongdoer.” But there was no occasion for saying what was said as to innocent wrongdoers. In that case the defendant entered upon the land of plaintiff, and, without his authority or consent, knowing' at the time his claim of ownership of the same, cut timber therefrom, and converted it into the cross-ties in controversy. Upon that fact the judgment of the court was based. In neither of these cases- was any rule laid down by which the identity of the property can be ascertained.
The authorities generally agree in holding that when a party has taken the property of another in good faith, and, in reliance upon a supposed right, without intention to commit wrong, converted it into another form, and increased its value by the expenditure of money and labor, the owner is precluded from following and reclaiming the property in its new form, if the transformation _ it has undergone has converted it into an article substantially different. But they have not agreed ujzon any rule by which it can in all cases be ascertained whether this transíoi’mationjzas or. has not taken place. “If grain .bo taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held in the old English law that the property is so altered as to change the title.
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Battle, J.
P. A. Eaton alleged in his complaint that he Avas the owner of five thousand cross-ties, of the value of $750; that they Avere in the possession of H. Gr. Langley; that he was 'entitled to the immediate possession of the same; and asked for the possession thereof, or, if that could not be obtained, their value. After" filing Avith the clerk of the circuit court the affidavit required in such cases, he sued out an order for the delivery of the cross-ties to himself; also a summons for Langley. He caused the summons to be served upon the defendant,, but directed the sheriff to return the order of delivery without service, Avhich aaus done.
The defendant answered the complaint by denying the allegations therein and alleging that he was the owner of the ties.
The issues in the action were tried by the judge and jury. Epon the evidence adduced, the jury found a special verdict, and the judge filed his conclusions of fact, both of which are stated by the judge as follows:
“From the evidence in this case the court finds as follows: (1) That the ties in controversy were cut by the defendant from the east half of section thirty-five, township seventeen north, range three east. (2) That the plaintiff was the owner of said land and the timber fthereon at the time the ties in controversy were cut. (3) That said ties were cut without authority from the plaintiff or any one representing him, and that in so cutting the said timber the defendant was a trespasser. (4) That the defendant in cutting said timber was acting under a Iona fide belief that he was the owner of the said timber, and had a right to cut it, and that he was an innocent and not a wilful trespasser therein.
“And from the answers of the jury to the special interrogatories the court finds: (5) That, at the time this action was begun, the defendant had 3,500 cross-ties, which he had made from said land while the plaintiff was the owner thereof, under the foregoing circumstances. (6) That said ties, at the beginning of this action, were of the value of 12¿ cents eaelN (7) That the timber from which the same were made, while standing, was of the value of 2 cents per tie.”"''
Upon these findings of facts the court rendered a judgment as follows: “It is therefore ordered, considered and adjudged by the court that the plaintiff have and recover of and from the defendant the sum of seventy dollars and all costs of this cause, and that, further, in case the sums of money above mentioned, together with the said costs, are not paid within ten days from this date, the plaintiff shall have and recover of the defendant the possession of the 3,500 cross-ties situated on the east half of section thirty-five in township seventeen north, range three east, and for which writ of delivery in this case may issue.”
After filing a motion for a new tidal, which was overruled, and a bill of exceptions, the plaintiff appealed.
In an attempt to sustain the judgment of the circuit court, appellee insists that this is not an action of replevin or detinue, “but is in the nature of an action of trover or trespass under the common law.” But the name of it is immaterial. The code abolished all forms of action. Let its name be what it may, it is unquestionably an action to recover tbe possession of specific personal property. In such actions the statute provides that the “judgment for the plaintiff may be for the delivery of the property, or for the value thereof, in case a delivery cannot be had, and damages for the detention.” Sand. & H. Dig., § 6398. The right to this judgment is in no wise affected by the issue or failure to issue an order of delivery, which is only necessary to enable the plaintiff (upon the execution of the proper bond) to obtain the immediate possession of the property at the beginning or during the progress of the suit, or force the defendant to give bond for its retention, and for no other purpose. Sand. & H. Dig., § 6383, et seq.
The cross-ties in controversy are the product of the timber of appellant and the labor of the appellee. The latter, honestly believing,that he was the owner of the timber, converted it into the cross-ties. The material used in making each tie, as it was in the tree, was worth two cents-,•'and, as it is, is worth twelve and a half cents. Under these circumstances, is appellant the owner of the ties, and entitled to their possession?-'
As a general rule, an owner cannot be deprived of his property without his consent or operation of law. “If unauthorized persons have bestowed expense or labor upon it, that fact cannot constitute a bar to his reclaiming it, so long as identification is not impracticable. But there must be a limit to this right.” Mr. Justice Blackstone lays down the rule very broadly that if a thing is changed into a different species, as by making wine out of another's grapes, oil from his olives, or bread from his wheat, the product belongs to the new operator, who is only to make satisfaction to the former proprietor for the materials converted. 2 Bl. Com. 404. Many authorities have followed this rule, while others have held that, in the case of a wilful appropriation, no extent of conversion can give to the wilful trespasser a title to the px’operty, so long as the original ma-' terials can be tx'aced in the impx’oved article. Weatherbee v. Green, 22 Mich. 311.
In McKinnis v. Railway, 44 Ark. 210, and Stotts v. Brookfield, 55 Ark. 307, it was held that the owner of timber which had been taken and converted by a wilful trespasser into cross-ties may recover the ties or their value in an action of replevin against tbe trespasser. In tbe latter case tbe court said: “While it is difficult to draw from the authorities a rule by which we may detennine with certainty what change in the original property converted will destroy its identity, so that replevin will not lie for its recovery, it is settled that the conversion of timber into cross-ties is not such a change, whether the change has been wrought by a wilful or an innocent wrongdoer.” But there was no occasion for saying what was said as to innocent wrongdoers. In that case the defendant entered upon the land of plaintiff, and, without his authority or consent, knowing' at the time his claim of ownership of the same, cut timber therefrom, and converted it into the cross-ties in controversy. Upon that fact the judgment of the court was based. In neither of these cases- was any rule laid down by which the identity of the property can be ascertained.
The authorities generally agree in holding that when a party has taken the property of another in good faith, and, in reliance upon a supposed right, without intention to commit wrong, converted it into another form, and increased its value by the expenditure of money and labor, the owner is precluded from following and reclaiming the property in its new form, if the transformation _ it has undergone has converted it into an article substantially different. But they have not agreed ujzon any rule by which it can in all cases be ascertained whether this transíoi’mationjzas or. has not taken place. “If grain .bo taken and made into malt, or money taken and made into a cup, or timber taken and made into a house, it is held in the old English law that the property is so altered as to change the title. * * * But cloth made into garments, leather into shoes, trees hewn or sawed into timber, and iron made into bars, it is said, may be reclaimed by their owner in their new and original shape. * * * Some of the cases place the right of the former owner to take the thing in its altered condition upon the question whether its identity could be made out by the senses.” Wetherbee v. Green, 22 Mich. 318, 319. But the supreme court of Michigan (Mr. Justice Cooley delivering the opinion of the court) said that the test of the senses is unsatisfactory, and that “no test which satisfies the reason of the law can be applied in the adjustment of questions of title to chattels by accession, unless it keeps in view the circumstances of relative values.” It said: “It may often happen that no difficulty will be experienced in determining the identity of a piece of timber which has been taken and built into a house; but no one disputes that the right of the original owner is gone in such a case. A particular piece of wood might perhaps be traced without trouble into a church organ, or other equally valuable article; but no one would defend a rule of law which, because the identity could be determined by the senses, would permit the owner of the wood to appropriate a musical instrument a hundred or a thousand times the value of his original materials, when the party who, under like circumstance, has doubled the value of another man’s corn by converting it into malt, is permitted to retain it, and held liable for the original value only. Such distinctions in the law would be without reason, and could not be tolerated. When the right to the improved articles is the point in issue, the question how much the property or labor of each has contributed to make it what it isjinust always be one of first importance. The owner of a beam built into the house of another loses his property in it, because the beam is insignificant in value or importance as compared to that to which it has become attached, and the musical instrument belongs to the maker rather than to the men whose timber was used in making it, not because the timber cannot be identified, but because, in bringing it to its present condition, the value of the labor has swallowed up and rendered insignificant the value of the original materials. The labor, in the case of the musical instrument, is just as much the principal thing as the house is in the other case instanced; the timber appropriated is in each case comparatively unimportant.” Wetherbee v. Green, supra, 319, 320.
Wetherbee v. Green, 22 Mich. 311, was an action of replevin by the appellee against the appellant to recover a quantity of hoops made out of the timber of the former by the latter in good faith, under what he supposed to be good authority. The timber in the tree was worth only $25, and the hoops made out of it were worth $700. The court held that the owner could not recover the hoops, but was entitled to the damages sustained by reason of the unintentional trespass. This decision was based upon the reason that the hoops were made in good faith, and upon the fact that the value of the timber, as compared to the value of the labor expended in making them, was insignificant.
In Isle Royale Mining Co. v. Hertin, 37 Mich. 332, the parties were owner's of adjoining tracts of timbered land. In the winter of 1873-4 the Hertins, in consequence of a mistake respecting the boundaries, went upon the lands of the mining company, and cut a quantity of cord-wood, which they hauled and piled on the bank of Portage Lake. The next spring the mining company took possession of the wood, and converted it to their own purposes. The wood on the bank of the lake was worth $2.874 per cord, and the value of the labor expended by the Hertins in cutting and putting it there was $1.874 per cord, nearly double the value of the timber. After the mining company had taken possession of the wood, the Hertins brought an action against the mining company for the value of their labor expended in converting the timber into cord-wood and placing it upon the bank of the lake. .The court held that they were not entitled to recover. Chief Justice Cooley, the same judge who delivered the opinion in Wetherbee v. Green, supra, in delivering the opinion of the court, said: “It is on all hands conceded that where the appropriation of the property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it, which destroys its identity, or converts it into something substantially different, and the value of the original article is insignificant as compared with the new product, the title to the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to recover the valué of the article as it was before the conversion. This is a thoroughly equitable dpctrine, and its aim is so to adjust the rights of the parties as to save both, if possible, or as nearly as possible, from loss. But where the - identity of the original article is susceptible of being traced, the idea of a change in the property is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of per' mitting its appropriation by the original owners so gross and palpable as to be apparent at the first blush. Perhaps no ease has gone further than Wetherbee v. Green, 22 Mich. 311, in which it was held that one who, by unintentional trespass, had taken from the land of another young trees of the value of $25, and converted them into hoops worth $700, had thereby made them his own, though the identity of trees and hoops was perfectly capable of being traced and established. But there is no such disparity of value between the standing tree and the cord-wood in this ease as was found to exist between the trees and the hoops in Wetherbee v. Green. The trees are not only susceptible of being traced and identified in the wood, but the difference in value between the two is not so great but that it is conceivable the owner may have preferred the young trees standing to the wood cut. The cord-wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value if they were allowed to grow. It cannot be assumed, as a rule, that a man prefers his trees cut into cord-wood rather .than left standing, and if his right to leave them uncut is interfered with, even by mistake, it is manifestly just that the consequences should fall upon the person committing the mistake, and not upon him. Nothing could more encourage carelessness than the acceptance of the principle that one who by mistake performs labor upon the property of another should lose nothing by his error, but should have a claim upon the owner for remuneration.'. Why should one be vigilant and careful of the rights of others if such were the law! Whether mistaken or not is all the same to him, for in either case he has employment, and receives his remuneration; while the inconveniences, if any, are left to rest with the ihnocent owner. Such a doctrine offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an innocent mistake.” See Grant v. Smith, 26 Mich. 201; Gates v. Rifle Boom Co., 70 id. 309.
Judge Cooley, in his work on Torts, lays down the rule upon this subject in the same words it is stated in Isle Royale Mining Co. v. Hertin, supra. Cooley, Torts, (2 Ed.) pp. 59, 60.
Professor Schouler, in his work on Personal property, sums up the modern doctrine upon this subject as follows: “Where the trespass was not wilful, but accidental, as through some mistake of fact, and the materials taken'can still be. identified, and the labor and materials of the trespasser are not. shown to have gone further than the appropriated materials towards producing the present valuable chattel, the owner of the materials is still entitled to the chattel. But where no element of wilfulness or intentional wrong whatever appears on the part .of him who applied another’s materials, and the identity of those’4 materials has finally disappeared in the new product, or where it can be shown that his own labor and materials contributed essentially much more to the value of the present chattel than those materials which he took without intending a wrong, he shall keep the chattel as his own; making, however, due compensation to the owner of the materials for what he took.” 2 Sehouler’s Personal Property (2d. Ed.), § 37.
On account of the conflict of opinion upon this subject, and the fact that this court is free from the restraints of precedents in respect thereto, we are at liberty to select the rule which is sustained by authority, and is in our opinion the wisest and most just. The rule stated by Judge Cooley comes nearer approaching this standard. The increased value of the original materials furnishes no guide by which the merit of the laborer who has given them their new form can be determined. The increased value is the joint result of the original material and the work and materials expended by the laborer in-ereating the new form. They may be equal, or the former may exceed the latter in value; and the increased value may exceed the aggregate value of the original materials and that expended upon them. Independent causes may contribute to the increased value. For instance, transportation to a market where the original material is scarce and in great demand may greatly increase its market value, or may diminish such value by the transfer to the place where the supply is greater and the demand is less than it is in the market from which it was shipped. So it cannot be said that the transportation added the increased value. Other causes — supply and demand — affect the value. So may labor change the original material into a new form, and increase the demand for it in that shape, and thereby enhance its value. X'VVhy, then, should the person who has made the expenditure be entitled to the difference between the aggregate value of his expenditure and the original material and the value of the article in its new form? He can lose no more than' the value of his labor or other expenditure. His right to the property in its new form should not, therefore, in any case be dependent upon its increased value, but upon the relative values of the original materials and his expenditures upon the same; and this should be considered only when the identity of the original article is susceptible of being traced; and then only when he has acted in good faith and converted it into something substantially different, and the value of the original article, as compared with the value of that expended upon it, is so insignificant as “to render the injustice of permitting its appropriation by the original owner so gross and palpable as to be apparent at the first blush.” In addition to the relative values the injury inflicted upon the owner by the trespasser, and the injustice of taking from the former his property, against his will, at its market value, should be considered and compared with the hardship the latter may suffer by the loss of his labor and other expenditures, in determining whether this appropriation would be such gross and palpable injustice as to give the innocent trespasser the right to the property in its converted form, as in Isle Royale Mining Co. v. Hertin, 37 Mich. 332. In this manner the rights of parties would be more nearly protected, and justice at the same time administered.
The value of the cross-ties in controversy was twelve and a half cents a tie. The value of each in the tree was two cents. The value of the labor expended upon them is not shown, but assuming it to be the increased value of ten and a half cents a tie, the difference between it and the value of the original material is not so great as to make the value of the latter, as compared with that of the former, insignificant, and to make the appropriation of the cross-ties by the original owner to his own use, without compensation, appear, under the circumstances, gross injustice at the first blush. The disparity is not so great as it was in Wetherbee v. Green, supra, in which trees of the value of $25 were cut and taken by one from the land of another and converted into hoops of the value of $700, which was twenty-eight times the value of the trees, while the cross-ties in this case were about six times; and yet the supreme court of Michigan, in Isle Royale Mining Co. v. Hertin, supra, said that “perhaps no ease has gone further than Wetherbee v. Green.”
In considering the justice of permitting the appellant to appropriate the cross-ties to his own use, the invasion of his rights and the injury done to him by appellee should not be overlooked. The trees belonged to him. They were standing upon his land, and he had the right to hold them as they were. No one had the right to take them from him, convert them into ties, and force him to accept their value at the time of the conversion. He may have preferred to have them to stand; and, if left standing for a few years, they might yield him great profit, and the enhancement of their value by the labor of appellee might be a poor compensation for the wrong done. But whether he wished to sell or not, it would be gross injustice to-permit appellee to force him to sell. He is entitled to the protection of the laws. Deny to him the right to the cross-ties, and force him to accept the value of his timber when appropriated by a trespasser, as it was at the time of the conversion, and he has no adequate protection, The injury inflicted by the trespasser would be borne in part by the innocent owner, and the guilty would escape. “Such a doctrine,” as said by Chief Justice Cooley, “offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an innocent mistake.”
\ Assuming the trees to be the property of appellant, and taking into consideration the great wrong committed by appellee in cutting them, the deprivation to the appellant of the right to use the same as it might please him, the probable loss occasioned thereby, the fact that the identification of the original material was unaffected by the labor expended, the encouragement that would be afforded to trespassers by allowing them to enjoy the fruits of their labor upon a mere showing of mistake, the protection a contrary policy would afford to the owner of standing trees against heedlessness, carelessness, pretended mistakes, and trespasses, and the importance of pursuing such course to secure such protection, — and comparing the injury inflicted upon the appellant by the .appellee, and the injustice of taking from the former his property against his will, with the hardship the latter may suffer by the loss of his labor, we think it would be lawful and right to allow appellant to recover the cross-ties, ánd to impose upon the appellee the the consequences of his own carelessness.
^ But appellant has not obtained possession of the cross-ties. In the event he cannot do so, he is entitled to the value of the property he has lost. How is this value to be estimated? This question is not beset with the difficulties which attend the right of recaption. When the appellant sued for the possession of the cross-ties, he was entitled to their possession, unless he had lost his property by the wrongful act of another. If entitled to retake it in its new form, it must be taken as he found it, though enhanced in value by the labor of appellee. The ties cannot be restored to their original form. The appellee cannot force the appellant, to become a debtor to him for the value of his labor, nor demand compensation for his voluntary additions to the value of the trees converted into ties, without the assent of the appellant. He cannot impose any conditions upon the right to retake them. The question, therefore, being whether the appellee shall lose his labor, or the appellant lose the right to take his property, the law decides in favor of the latter. But, in determining the compensation the appellant shall receive as the value of his property which has been wrongfully converted, the difficulty does not arise. The value of the property of the owner, which has been converted, can be ascertained and fixed without including therein the labor expended upon it. Hence the law protects the unintentional trespasser in such cases by limiting the right of the owner to recover. Peters B. & L. Co. v Lesh, 119 Ind. 98; Heard v. James, 49 Miss. 236; Herdic v. Young, 55 Pa. St. 176; Single v. Schneider, 30 Wis. 570; 2 Sedgwick, Damages (8 Ed.), § 534; Isle Royale Mining Company v. Hertin, 26 Am. Rep. pp. 525, 530. As to the extent of this limitation, the authorities are not agreed. But we think that, inasmuch as this is an exception to the general rule, made for the purpose of protecting the unintentional trespasser, it should be allowed to prevail only to the extent it is necessary to give protection, and that the owner, in actions for the possession of personal property in the new form into which has been converted inadvertently, under & Iona fide but mistaken belief of right, “in case a delivery cannot be had,” is entitled to recover the value of the property in its new form, less the labor and material expended in transforming it, provided the expenditures do not exceed the increase in value which was added to the transformation, in which event he should recover the value of the property in its new form, less the increase. Weymouth v. Chicago & Western Railway Co., 17 Wis. 550. Some courts hold that the owner, in such eases, should recover the value of his property in its new form, less the expense incurred in converting it into such form and increasing its value. Goller v. Fett, 30 Cal. 482; Naye v. Yappen, 23 Cal. 306; Herdic v. Young, 55 Pa. St. 176. But we do not think this is a correct rule in all cases, for the expense may in some eases exceed the increase in value, and in that event the rule would require the owner to pay for something that he never received.
According to this opinion, two errors appear in the record in this action. One is in the form of the judgment. If the appellant was the owner of the property in controversy, he was entitled to a judgment for its possession, and for its value, according to the rule before stated, “in case a delivery can not be had.” Sand. & H. Dig., § 6398. On the contrary, the judgment rendered is for the value of the property determined by the court, and then for its possession in the event the value is not paid. The other error is the failure to fix the value according to the rule we have stated.
For these errors the judgment of the circuit court is reversed, and the cause is remanded for a new trial.