which was refused; that before this action was brought, the said defendants had sold and delivered said mare to one David Wise; that said sale was made before said demand was made; that said delivery to Wise was made for the purpose of evading the writ of replevin in this cause, and said delivery was made about onefourth hour before this action was commenced; that the officer to whom the writ was issued did not succeed in finding said mare, and that the value of said mare is fifty dollars. If, upon the foregoing facts, the law be with the plaintiff, as against either or both defendants, then we find for the plaintiff, and assess his damages at fifty dollars. If the law be with either or both defendants, then we find for him or them." A motion by the appellants for judgment in their favor, upon the facts found by the special verdict, was overruled. Judgment was then rendered in favor of the appellee upon his motion for the value of the mare as found by the jury, and for costs. The appellants have assigned as error the overruling of their motion for judgment upon the special verdict, and the sustaining of the appellee's motion for judgment. The question presented for our decision is, Can the judgment of the circuit court be sustained upon the facts found by the jury? It is made to appear by the facts found that, on and prior to the 29th of July, 1889, the appellee was the owner and in possession of the mare in dispute, and that on that day Arthur Williams, without right, traded and delivered her to the appellants, who, upon the second day of August, 1889, before this suit was commenced, refused, upon the demand of the appellee, to return to him said mare; that before the commencement of this suit, and before the making of said demand, the appellants sold and delivered said mare to one David Wise for the purpose of evading the writ of replevin 534 issued in this cause; that the value of the mare is fifty dollars. Counsel for the appellants contend that, inasmuch as the appellants were not in the possession of the mare at the time the action was commenced, the judgment of the court below was erroneous. The two actions, detinue and replevin, were formerly in use in this state. These two actions, detinue, for an unlawful detention, and replevin, for an unlawful taking and detention, covered the whole ground of deprivation of personal property, so far as the recovery of the specific articles was concerned, and we think an examination of the earlier statutes, and the definition of detinue and replevin as given at common law, will clearly show that the statutes now in force for the recovery of personal property cover the entire ground of both of those actions: Stats. 1824, p. 337; Rev. Stats. 1831, pp. 305, 424; Rev. Stats. 1838, pp. 372, 475, 476, 477; Rev. Stats. 1843, pp. 697, 732, 896; 1 Chitty on Pleading, 120, 162. In the case at bar, it is an unlawful detention that is complained of. In detinue, the gist of the action was the unlawful detainer, and, therefore, it was that the action would lie against a person having the wrongful possession of the chattel, although he may have acquired the possession in the first instance lawfully. Replevin was originally the remedy when goods were unjustly taken and detained. Now, under the code, and in the justice's act, replevin embraces both a wrongful taking and an unlawful detention. Detinue, at common law, would lie against him who once had, but afterward improperly parted with, the possession of a chattel: 1 Chitty on Pleading, 123; Jones v. Dowle, 9 Mees. & W. 19; Ellis v. Lersner, 48 Barb. 539; Nichols v. Michael, 23 N. Y. 264 (268); 80 Am. Dec. 259; Dunham v. Troy etc. R. R. Co., 3 Keyes, 543; Harris v. Hillman, 26 Ala. 380; Lightfoot v. Jordan, 63 Ala. 224; Harkey v. Tillman, 40 Ark. 551 (555). 585 It is our opinion, also, now that the replevin, under our statutes, embraces detinue, as it was at common law, that a party in the possession of goods, without right, cannot avoid the action of replevin by wrongfully transferring the possession to another, even though the transfer be made before the commencement of the suit. He cannot protect himself by showing that he has wrongfully transferred the property to another. In this view we are well supported by authority: Nichols v. Michael, 23 N. Y. 264; 80 Am. Dec. 259; Latimer v. Wheeler, 3 Abb. App. 35; Bullis v. Montgomery, 50 N, Y. 352; Manning v. Keenan, 73 N. Y. 45; Drake v. Wakefield, 11 How. Pr. 106; Ross v. Cassidy, 27 How. Pr. 416; Bockway v. Burnap, 16 Barb. 309; Ward v. Woodburn, 27 Barb. 346; Ellis v. Lersner, 48 Barb. 539; Barnett v. Selling, 9 Hun, 236; Sayward v. Warren, 27 Me. 453 (457); Freeman v. Scurlock, 27 Ala. 407; Washington v. Love, 34 Ark. 93; Harris v. Hillman, 26 Ala. 380; Lightfoot. v. Jordan, 63 Ala. 224; Schmidt v. Bender, 39 Kan. 437; Gildas v. Crosby, 61 Mich. 413; Briggs v. McEwen, 77 Iowa, 303; Gassner v. Marquardt, 76 Wis. 579; Wells on Replevin, sec. 145; Cobbey on Replevin, sec. 435. The case of Latimer v. Wheeler, 3 Abb. App. 35, is quoted from with approval in Louthain v. Fitzer, 78 Ind. 449. See, also, Wilson v. Rybolt, 17 Ind. 391; 79 Am. Dec. 486; Hoke v. Applegate, 92 Ind. 570. The delivery of the mare by the appellants to Wise must, from the facts found, be regarded as wrongful to the appelleea mere subterfuge to withhold the mare from the latter, and to escape liability. The appellants had no title to the property, and could. not rightfully deliver it to any other than its owner. They were trying to place the dominion of the property elsewhere than in the owner. If it be said that there was a detention of the property on the part of Wise, it must be said also that the appellants were contributors and participants in that detention. It has been decided that the selling of the property to another, without right, is, in effect, 536 a detention of the property from the true owner: See Sayward v. Warren, 27 Me. 453; Latimer v. Wheeler, 3 Abb. App. 35. The judgment is affirmed, with costs. REPLEVIN lies for the wrongful taking of property, as well as for its wrongful detention. The groundwork of the action is an unlawful detention, whether an unlawful taking has occurred or not; and property wrongfully taken is wrongfully detained until restored to its owner: Oleson v. Merrill, 20 Wis. 462; 91 Am. Dec. 428, and note. Detinue and replevin, in their fullest scope, were formerly in use in Indiana, but the whole ground of both these actions is now covered by the code provision for the recovery of personal property: Wilson v. Rybolt, 17 Ind. 391; 79 Am. Dec. 486. COLLINS v. STATE. [3 INDIANA APPEALS, 542.] EXECUTION - MORTGAGED PERSONAL PROPERTY LEVY.-Under a statute authorizing mortgaged personal property to be levied on and sold under execution, the levy is only upon the interest which remains after payment of the security; or, in other words, upon the equity of redemption; but, for the purpose of the levy and sale of such interest, the officer may take possession of the property, as against both the mortgagor and the mortgagee. - EXECUTION MORTGAGED PERSONAL PROPERTYDUTY OF OFFICER.-An officer levying on mortgaged personal property must exercise due care for the protection of the mortgagee's Interest, and is prohibited, not only from diverting such property from the security of the mortgage, but from doing anything which would have the effect of diminishing its value as such security. If the mortgage has been recorded, he is bound to take cognizance of it without any other notice. EXECUTION-MORTGAGED PERSONALTY-DUTY AND LIABILITY OF OFFICER.-An officer levying upon mortgaged per sonal property and selling it upon execution, the lien of which is junfor to that of the mortgage, must hold it until the terms of the mortgage have been complied with by the purchaser, and, if he fails to do so he is liable on his official bond for any damage sustained by the mortgagee. EXECUTION--MORTGAGED PERSONALTY-CHANGE OF POSSESSION-OFFICER'S LIABILITY.-A complaint in an action on a constable's bond, alleging that a chattel mortgage was given to indemnify the mortgagees against any loss on account of their being sureties on certain notes; that it provided that the mortgagor was bound to pay the notes at a certain time, and contained a further provision that, if the mortgaged property should be levied on, this, as well as default in payment, should entitle the mortgagees to take Immediate possession without process of law, and the same should become the absolute property of the mortgagees; that the mortgaged property was levied upon by a constable, and sold to satisfy a judgment against the mortgagor, junior to the mortgage; that the property was delivered to the holders of the junior judgment without the constable requiring the purchasers to comply with the terms of the mortgage; that the nortgage had been duly recorded; that the notes were due and unpaid; and that the mortgagor, the principal on said notes, was wholly insolvent and unable to pay the same, states a good cause of action, though the mortgagees did not pay out anything on account of their suretyship, as this would not be a defense. The constable must be held to know that a liability had accrued to the mortgagees by the terms of the mortgage; and that the purchaser had acquired nothing at the sale except the mortgagor's equity of redemption; and, while he had nothing to do with passing upon the questions involved in the mortgage, it was his duty to hold possession of the property until those questions were settled, and, by sooner surrendering the possession, he did so at his peril. EXECUTION-LEVY UPON MORTGAGED PERSONALTYDAMAGES.-In an action upon a constable's bond for levying upon mortgaged personal property and wrongfully allowing it to be removed beyond the reach of the mortgage, the measure of damages is the value of the property, where such value is found to be less than the amount of the debt, but if the value of the property is more than the debt, the amount of the indebtedness furnishes the measure for the amount of damages. U. J. Hammond, E. S. Rogers, W. A. Cullen, and J. D. Megee, for the appellants. B. L. Smith, C. Cambern, D. S. Morgan, and D. Morris, for the appellee. 544 REINHARD, J. This action was brought by the state, on the relation of Hutchinson, Price, and Green, against the ppellant Collins, a constable of Rush county, and the appellant Draper, as his surety on his official bond, to recover damages. The appellee's relators had a chattel mortgage on certain goods belonging to one William T. Spradling. Collins, as constable, had in his hands an execution against Spradling on a judgment for $100 in favor of one Jacob Beckner, which execution was junior to the mortgage. He sold the property on the execution, and, without first requiring the purchaser to comply with the terms of the mortgage, delivered the goods to the lat ter, who removed them out of the reach of relators' mortgage. The complaint, omitting the caption, is as follows: "Said plaintiffs complain of said defendants, and say that on the 29th day of February, 1889, said William H. Collins was the duly appointed constable of Posey township, Rush county, Indiana, and on the 5th day of March, 1889, he was duly qualified and commissioned as such constable, with said defendants Draper and Glass as his sureties in the sum of $1,000, a copy of which bond is filed herewith, marked 'Exhibit A'; that on the 8th day of July, 1889, one William T. Spradling executed to these relators a mortgage on a certain stock of hardware, situate in a storeroom on lot No. 6, in J. W. Green's first addition to the town of Arlington, Indiana, to indemnify them as his sureties on two notes for $100 and $125, payable to one Jacob Beckner, which mortgage was duly recorded in the county where the mortgagor resided, on the 8th day of July, 1889, in chattel mortgage record of said county of Rush, No. 23, on pages 545 242 and 243, a copy of which mortgage is filed herewith, marked 'Exhibit B.' "Plaintiffs further say that said mortgage bears date of 5th day of April, 1889, but the same was not delivered to plaintiffs, nor accepted by them, until the said 8th day of July, 1889, the day the same was recorded; that the mortgage contained the stipulation that should said Spradling pay said notes at maturity, then said mortgage should be void, otherwise to remain in force, and the further stipulation that said Spradling shall retain possession of said goods until said notes become due; and, if said notes are not paid promptly at maturity, said relators should have the right to take possession of same, and the same should become the absolute property of said relators. And relators say that said Spradling did not pay either of said notes at maturity, but has failed and refused to pay any part thereof, though both of said notes became due long before the beginning of this suit "They further say said Spradling is wholly insolvent, and judgment on said $100 note was rendered against these relators as such sureties by the Rush circuit court, on the 31st day of March, 1890, for $104, and $24 costs, and suit is now pending on said $125 note in said court. "Relators further say that, after the recording of said mortgage, the said Spradling confessed a judgment in favor of Hildebrand & Fugate on an account before Willis D. Collins, justice of the peace for said Posey township, for $100, upon which judgment |