OPINION OP THE COURT.
*43 1 *42It is an elementary principle of the law of repleAdn, in the detinet, that the defendant must have the possession or control of the property in controversy at the commencement of the action, the gist of the action being the unlawliul detention of the property. It is strictly a possessory action and the right' to the possession of the *43property involved at the commencement of the action is the question at issue. It is claimed that the sheriff, Elmer, did not have the possession and that consequently an action in replevin did not lie against him. It is true that the ' actual manual possession of the property was not in him at the time this action was commenced, but he had, in the first instance, taken the property under the execution against Weatherill, and at the dismissal of the original case he agreed to and did accept a tender of the property and receipted for the same in writing and upon á demand being made, refused to deliver the same. We think his action clearly estops him from disavowing his possession, and that his exercise of control by appointing a custodian of the property and his refusal to surrender the same on demand, was sufficient possession to maintain this action. Mr. Cobbejq in his excellent work on the Law of Be-plevin, lays down the following rule: “If the officer’s possession, be it actual or constructive, is such that, when interfered with, he could recapture by replevin, then replevin will lie against him.” Cobbey on Beplevin, Sec. 62.
Measured by this rule there can be little question but what the sheriff in this case is liable. He could, without doubt, have maintained replevin or trespass against a stranger interfering with his property, it having been ordered returned to him and he having receipted therefor.
In Teeple v. Dickey, 94 Ind. 124, it was held that in a case similar to the case at bar, no return whatever was necessary xipon the dismissal of an action in replevin for irregularly, where an order of return was made by the court dismissing the first suit. The court there says: “The judgment on the dismissal for the return of the property to the appellant, placed it constructively in his possession. It was necessary for the appellee to bring another action to establish his ownership and right of possession. This we think he might do without restoring the actual possession to the appellant.”
In Louthain v. Fitzer, 78 Ind. 449, the Supreme Court of Indiana quotes with approval from Latimer v. Wheeler, 3 Abb. App. as follows:
“In an action for possession of personal property, it is *44not necessary to show that defendant had possession in fact when the action was brought. If he had been previously in possession, and was present at the time of a demand on, and refusal by, another person, at the place where the goods .were, he cannot defend upon the ground that he had parted with the possession to such person. Any unlawful interference with the property of another, or exercise of dominion over it, by which the owner is damnified, is sufficient to maintain the action.”
In view of the facts in this case as heretofore recited, we do not think there was error in the court’s instruction Number S.even with reference to the possession of the sheriff, nor in the finding of the jury that he had such possession, by their general verdict against him.
2 It is urged that the trial court erred in rendering judgment against the defendant, Elmer, for the value of the property as found by the jury, as damages. The plaintiff had already recovered the possession of the property by his writ of replevin, and his measure of damages was not the value of the property, but his damage by reason of the unlawful detention of the same by the sheriff. The rule is thus laid down by Cobbey:
“If the property has been delivered to him on the writ, he is entitled to a judgment affirming his right of possession, and, if title was involved, the right of property and nominal damages and costs, and if he had pleaded and proved it, damages for such sum as will compensate him for the injury he has sustained, by reason of the wrongful taking and detention of the defendant, and any depreciation in value it may have sustained while so wrongfully detained.” Young v. Willet, 8 Bosworth, (N. Y.) 486; Stevens v. Tuite, 104 Mass. 328; Fisher v. Whollery, 25 Pa. St. 197; Nashville Ins. Co. v. Alexander, 10 Hump. (Tenn.) 378; 24 Am. & Eng. Enc. of Law, (3nd Ed.) 513 and cases cited.
In this case there was no proof of damages by reason of the detention of the property, and the judgment should have been for nominal damages and costs against the defendant, Elmer.
Upon the filing of a remitittur with the clerk of this *45.court of six hundred and ninety-nine dollars (699.00) by the appellee, within thirty (30) days the judgment of the lower court will be affirmed, otherwise it will be reversed and remanded for further proceedings.