Rotiirock, J.
l. judgment: election* of party. The facts embodied in the foregoing statement are the substance of the finding of the court below, as contained in appellant’s abstract. Counsel for respective parties have discussed the question as Aether the successful party in an action of replevin should make his election to take the property in controversy, or its value at the time the judgment is rendered, or whether he may make such election when the execution issues. An examination of the sections of the statute upon that question leaves the mind in some doubt. But a decision of the question in this case does not appear to us to be necessary, because we think the judgment rendered by the justice was an election upon the part of the judgment plaintiff to take the property, and that he was only entitled to recover the value “ in default of the recovery” of the possession of the property. Such is the plain language and meaning of the judgment. It was not a judgment for the return of the property, or for its value, at the option of the plaintiff therein. He then and there by the judgment elected to take the property, and was only entitled to its value in default of the recovery of the property by proper process. This fixed the rights of the parties, and when the property was tendered to the defendant he was bound, under the judgment, to receive it. And when he caused the same to be levied upon, he should have taken it into his possession, as he was authorized to do by the judgment, and entered satisfaction of the judgment for the recovery of the property, and collected the costs by general execution, if necessary.
This disposition of the case renders it unnecessary to consider the question as to the rights of the parties consequent upon the destruction of the property in question by fire.
The judgment of the Circuit Court must be
Reversed.
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