That the unauthorized use of the oxen by the defendant was a conversion, is not seriously controverted by the defendant, nor can it be. All those somewhat numerous cases wherein it is held that the driving of a horse, hired to go to one place, to another and a different place, is a conversion, are directly in point.
In an action of trover, the value of the property at the time of the conversion (with interest after) is in general the measure of damages. A return and acceptance of the property after conversion, whether before or after suit, go only in mitigation of damages.
Upon general principles of pleading, as well as upon express authority, the plaintiff, in trover, cannot recover special damages which are not laid in his declaration. Whether, therefore, the plaintiff in this case could or could not have recovered any of the items of special damage claimed by him before the referee, if the same had been properly alleged in his declaration, need not be considered. The plaintiff is entitled to judgment for the difference between the value of the oxen at the time of the conversion and their value at the time they were taken by him.
Judgment for the plaintiff.
SMITH, J., did not sit: the others concurred.