This was an attempt of the defendant below to get possession of the horses contrary to the manifest intent and spirit of the contract. He was not entitled to the possession until he paid for them. The ingenious device to which he resorted to compel the application of the value of the horses on the notes which he held against the other party, cannot receive the sanction of law. Having given bond in this action of replevin and retained the horses, on the right being found against him, the further finding was an assessment of damages. In fixing on this amount it was proper for the jury to take into consideration the ten dollars which he had paid. They are presumed to have done so, and to have returned a verdict for the residue of the damages.
Judgment affirmed.