Lyon, J.
1. No exceptions were taken to the charge which the court gave the jury in respect to the issue of alleged fraud in the sale of a portion of the property in controversy by *119Leroy Bigelow to tbe plaintiff. Indeed, tbe law on that sub-juct was very clearly and correctly stated to tbe' jury by tbe learned circuit judge. There is but a single exception relating to this branch of tbe case, and that was taken to tbe refusal of the court to give an instruction proposed on behalf of the defendant, as follows: “ The conveyance of the whole property of a debtor affords a very violent presumption of a fraudulent intent, so far as existing creditors are concerned.” We think that the proposed instruction was properly refused. If Leroy Bigelow conveyed all of his property to the plaintiff, that was a circumstance to be considered by the jury in connection with all of the other facts of the case, in determining whether such sale was fraudulent or otherwise; and it was for the jury to give to each fact and circumstance the weight to which, in their opinion, it was fairly entitled. Under some conditions, the jury might regard such conveyance as raising a very violent presumption of fraud, while under other and different conditions the jury might properly determine that it was but a slight indication of a fraudulent intent. But this is for the jury, and not for the court, to determine, and so the court held.
2. A question is made as to the correctness of the rule of damages laid down by the court. The following instruction proposed by the defendant was refused: “ The greatest damages the plaintiff is entitled to recover in any event, cannot exceed the value of the property at the time it was taken, and interest to date.”- The jur}T were instructed, if they found for the plaintiff, to assess as damages for the detention of the property, besides interest on the value of the grain, “ the value of the use of the wagon and buggy, taking into account what part of the year the same could be used,” and the value óf the use of the reaper for the seasons of 1872 and 1878.
Remembering that the judgment is for the. value of the property at the time it was seized under the attachment, a little reflection will satisfy the mind that an erroneous rule of damages for the detention of the property was adopted. The value *120of the use of the reaper, wagon and buggy is necessarily made up of the interest on the value of those articles and the depreciation in the value thereof by reason of such use. Other elements may enter into the value of the use, but they are exceptional and accidental. The plaintiff thus recovers the full value of the-articles before such value was depreciated by use, together with damages for such depreciation. Suppose he has recovered $150 for the reaper, that sum being its full value when seized, and $100 for the use thereof during the two seasons it was out of his possession. It is obvious that in such case he would be $100 better off — less the interest on the value of the reaper, — than he would have been had the reaper remained in his possession. A rule of damages which leads to such a result should not be sustained in any form of action. Had the plaintiff directed his proofs to the value of the articles at the time of the trial, it is possible that the rule of damages adopted by the circuit court might be sustained. Whether it could or not, we do not decide here.
Were this an action of trover, the rule of damages would be, the value of the property when seized and interest thereon to the time of-trial. By electing to take judgment absolutely for the value of the property and the damages assessed by the jury, as he may do under the statute (oh. 124, Laws of 1869 ; Tay. Stats., 1504, § 39), the plaintiff has made this action perform the functions and accomplish the results of an action of trover. Regarding the substance rather than the form of the proceeding, as important and controlling, is there any good reason for applying a different rule of damages in this action, from that which would be applied were it, in form, an action of trover ? We think not, and must therefore apply the same rule.
This case is decided upon its own peculiar facts, and must not be regarded as settling, or as attempting to settle, the rule of damages in other actions of replevin in which the facts are not the same as in this case.
Our conclusion is, that the plaintiff was only entitled to re*121cover the value of the property, assessed at $507, and interest thereon from the time it was taken from him, September 2d, 1871, to October 22d, 1873, the date of the verdict, being $75.92. His judgment should therefore have been for $582.92, instead of $670. The excess is $87.08.
Following the practice adopted in Kavanaugh v. Janesville, 24 Wis., 618, the judgment of this court is, that if the plaintiff will remit such excess, and pay the costs of this appeal, the judgment of the court below is affirmed. Failing to do so, the judgment is reversed, and a new trial ordered.
By the Court. — Ordered accordingly.