delivered the opinion of the court.

This is an action of replevin, under the statute of 1842, regulating said action, for the wrongful taking and detention of two slaves, mother and son.

The question raised upon the pleadings and the judgment of the court thereon, we will not consider, because the result was a trial upon the merits, which is now the object of the law in this state, and we could do no more than direct such an attempt in this state of the case.

The circuit court rejected the testimony of James Rowsey, who was introduced to prove a title in himself to the slaves as a foundation for showing the absence of a tortious taking, it having previously been shown that the defendants below acted at his instigation, and under his directions. The court did not err in so ruling, for although such proof might avail under different circumstances, Rowsey was not a legal witness to the fact.

It was in evidence that Rowsey had hired the slaves to Goodwin during the life of Rowsey’s wife, and at a certain sum per annum secured by deed and security; this contract entitled Goodwin to their possession during that term, and warranted a recovery so far as this action was concerned, which involves the right to immediate recovery in the plaintiff, and the wrongful taking or detention by the defendants. The circuit court, therefore, instructed the jury correctly as to this matter.'

In this instance, the judgment of the court is for the full value of the slaves, or their restoration to the plaintiff, together with damages for their detention. But the plaintiff below being *230entitled to possession only during another’s life, and the tafdng having been proved to have been at the instigation of the hirer of the slaves, the value assessed should have been commensurate with the value of his title and no more; and, therefore, the judgment must be reversed, and a new trial granted, when the measure of damages must be approximated by the jury, in the event of a finding for the plaintiff, as near as may be in view of all the facts surrounding the case.