The opinion of the court was delivered by

The court have not been furnished with the opinion of the judge before whom this cause was tried, and are- not apprized of the precise ground upon which the motion to nonsuit was granted. The nonsuit is now sought to be sustained on several grounds.

1. Because there was no proof of the plaintiff’s ownership of the chattel in controversy. Special property, joined- with the actual possession of personal chattels by the plaintiff, is sufficient to maintain trespass. It is not necessary that the plaintiff should have the absolute ownership. 1 Chit. Pl. (7th ed.) 70, 195, 196 ; 2 Saund. Pl. & Ev. 878; 1 Archb. N. P. 366. As against a wrongdoer, who takes the property out of the possession of the plaintiff without authority, a bare possession is sufficient to enable the plaintiff to recover in trespass. Demick v. Chapman, 11 Johns. R. 132 ; Hoyt v. Gelston, 13 Johns. R. 141, 561; 1 Archb. N. P. 366. The plaintiff offered evidence tending to show not an absolute ownership of the property in "controversy,, but a rightful possession, coupled with an actual interest *447as to remuneration. The evidence, if believed by the jury, was sufficient to entitle the plaintiff to a verdict. The general averment of property in the plaintiff is sustained by. proof of actual possession coupled with an interest, though the absolute property be in a third party.

2. It is insisted, however, that inasmuch as the replication not only traverses the allegation of property in the defendant in attachment, contained in the plea, but avers the property to be in the plaintiff, it was necessary, in support of the replication, to show absolute property in the plaintiff.

The defendant’s pleas, except the general issue, are strictly special pleas in bar, confessing and avoiding the plaintiff’s cause of action. They are not like the plea of property in replevin, a mere traverse of the declaration. The affirmative of the issues was not upon the plaintiff,- but upon the defendant. The distinction between these pleas and the plea of property in replevin, and the grounds of that distinction, are clearly stated by Ch. Just. Hornblower, in Chambers v. Hunt (3 Harr. 341). The character of the issues was not changed, nor was the burthen of proof shifted by the averment contained in the replication, that the property was the property of the plaintiff. That allegation, though essential in the action of replevin, is irrelevant in trespass, and must be rejected as surplusage. The traverse is complete without it.

At common law, the plea of property in the defendan in an action of trespass was not used. The matter of the plea was given in evidence under the general issue. By the modern English practice, by rule of 4 ‘William IY, want of property in the plaintiff must be specially pleaded. But this plea does not put in issue the question, whether the plaintiff is the absolute owner, but simply whether or not he had, at the time of the tort, such title to the goods in question as to enable him to maintain trespass for taking them. 1 Archb. N. P. 363-6.

*448Nor does the fact that the plaintiff, by his evidence, showed that the defendant in attachment had property m the goods liable to be attached, and that it was taken 1 y virtue of the attachment, defeat the plaintiff’s right of recovery. It was necessary that the evidence should go further, and show that the right acquired under the attachment was paramount to the plaintiff’s right of property in the goods. The utmost effect of the evidence supposed would be to justify the service of the attachment upon the interest of the defendant in the property attached, and the enforcement of that attachment, subject to the plaintiff’s right of lien. But it could not justify the converting and disposing of the property to the use of the defendant in derogation of the plaintiff’s rights. An attachment will not divest the lien of the garnishee. Serg. on At. 90, 91.

3. The giving of the bond by the plaintiff to the constable, conditioned for the safe keeping and delivery of the property attached, was no waiver of the plaintiff’s lien. If the attachment was duly served upon the property subject to the lien of the plaintiff, the bond may have been given without conflicting with the rights of the plaintiff. But if the bond was wrongfully demanded, and was given by the defendant to avoid being deprived of the possession of the property, it was no abandonment or waiver of his rights.

4. The question of damages can create no difficulty in the way of a recovery. The measure of damages in trespass is compensation to the plaintiff for his loss. Hopple v. Higbee, 3 Zab. 342. The plaintiff has no claim, beyond the amount of his lien, as against the owner of the goods or those claiming under him ; he recovers damages only to the extent of his interest. Lyle v. Barker, 5 Binney 457 ; Ingersoll v. Van Bokkelin, 7 Cowen 670, S. C.; 5 Wend 315 ; Spoor v. Holland, 8 Wend. 445; Sedgwick on Dam. 506. Nor will a verdict for the plaintiff, under the circumstances, vest the title of the horse'absolutely in the defendant *449in this action, to the prejudice of the rights of the absolute owner. The verdict will vest in the defendant the right of the plaintiff in the property, and nothing more. It will not interfere with the rights of third parties. The extent of the principle is, that in trover, or trespass de bonis asportabis, after judgment, the property cannot be claimed again by the plaintiff. Brown v. Wootton, Cro. Jac. 73; Adams v. Broughton, 2 Stran. 1078 ; Wooley v. Carter, 2 Halst. 88.

The nonsuit should be set asido, and a new trial granted.

Ogden, Elmer, and Haines, Justices, concurred.