Barrett, J.
This is in form, an action of trover. The case was referred under a rule of court, and the referee has reported all the facts. It is well settled, that if the report shows a case upon .which the plaintiff has a right of recovery under any amendment of the declaration that might lawfully be made, the court will render such a judgment as, under a proper declaration, the plaintiff would, be entitled to. It is plain, in this case, that it would have been lawful to permit an amendment, by adding a count in case, setting forth the special facts, embracing as the gravamen the wrongful conduct of the defendant in setting up the note as valid, constituting a debt owing by the plaintiff to himself, and thus putting the plaintiff in peril,, and rendering it necessary for him to take. measures to protect himself, and therein incurring expense.
We make these remarks in view of an aspect of the case which will be mentioned hereafter.
*597If this note had been given by the plaintiff to the defendant as evidence of a debt due to the defendant, and the plaintiff had paid the same, the plaintiff -would have been entitled to it as his own property; and a refusal to deliver it to him on reasonable demand, and under, proper circumstances, would have given a right of action in trover. But such was not this case. The plaintiff had given the note for accommodation to the defendant, who was to pay and take care of it, and save the plaintiff from liability upon it. The defendant had paid and taken it up, after having used it for the purpose designed. The plaintiff was then under no further liability. The. note was fundus officio. If the plaintiff had then had some proper instrument from the defendant conclusively operating to show that the note had become invalid as against the plaintiff, he would have had no interest in the note, and it might be said he had no property in it. It would seem that the only right the plaintiff had in respect to the note after it had been paid, was, to have his name stricken out, or an endorsement made upon it showing that its validity was at an end. If either of these things had been done, it is difficult to see why the defendant might not properly have retained the note, or on what ground the plaintiff could have insisted that the note was his as a piece-of property. If the plaintiff can be said to_ have any right in the note as property, it is because the defendant set it up and claimed to hold it as a valid instrument still in force against the plaintiff. In the character thus assumed for it, the defendant had no right to it, and the plaintiff had.
It was not permissible for the defendant to repudiate such character, thus given by him to the note, after this suit had been brought, and thereby defeat rights and avoid liabilities which existed at the time of bringing the suit. At that time, in the character given to the note by the defendant, the plaintiff was entitled to it, and the defendant refused to give it up on demand, and his insisting on having it paid to him by the plaintiff constituted a conversion, for which trover might be maintained; and, if only the question of nominal damages was involved, we should have no difficulty with the caá6 under the declaration in trover. But the referee has found that the plaintiff has sustained ten dollars actual damages, as the result of the defendant’s conduct, but this does not enter into, or constitute the *598value of the note as a piece of property. The general rule is, that the measure of actual damage in trover, is the value of the property,. or the extent of injury done to it. Damage outside of this ordinarily can only be recovered by special action on the case, or by special averments in the declaration. For the purpose of avoiding embarrassment in this aspect of the case, we are led to put it upon the same ground as if a special count in case had been inserted in, or added by amendment to, the declaration. Under such a count we have no doubt of the plaintiff’s right to recover the actual damage caused to him by the defendant’s wrongful conduct in respect to the note.
The expenses of this suit, beyond the taxable costs, cannot be embraced as such damage. They are not of that character of special damage resulting as a consequence of the defendant’s wrongful act, as to constitute a ground of recovery in the action itself.
Judgment is reversed, and judgment rendered for the plaintiff for ten dollars damages, and his costs in the county court.