[Heard v. Hicks, et al.] It will be borne in mind that the delivery or replevin bond contains no stipulation binding the obligors for any damages that the plaintiff might suffer in consequence of the giving thereof. For this, as well as other reasons, it is unnecessary for us to consider the claim asserted in this suit for attorney's fees incurred in the detinue suit. Sureties are bound only to the extent expressed in their obligation, or imposed by law. They stand on the terms of their contract. Several pleas were interposed to the action, to some of which plaintiff filed demurrers. The rulings on the demurrers are shown only in the bill of exceptions. Under our rules of practice we are forbidden to consider these demurrers, but must presume they were abandoned.-3 Brick. Dig., 78, § 7; Powell v. State, 89 Ala. 172, 8 So. Rep. 109; Beck v. West, 91 Ala. 312, 9 So. Rep. 199. It results that we must try this case as an issue joined on all the pleas, without considering their legal sufficiency. Pending the detinue suit, and after the execution of the replevin bond, a fire destroyed the mill and gin, and damaged the engine. No proof was offered in explanation of the fire, or its origin, and no special blame is imputed to the defendants on account thereof. The recovery in the detinue suit, however, demonstrates that, to the extent the plaintiff had verdict and judgment, the property was his at the institution of the suit, and, as a consequence, the possession and use of it by the defendants in the detinue suit was wrongful. The rulings of the circuit court in reference to the gin, the mill, the mule and the wagon were clearly free from error. The mule and wagon were tendered within thirty days after the judgment was rendered, and the plaintiff had the benefit of them. The mill and gin having been entirely destroyed by fire, they could not be delivered. Their alternate values had been assessed and made the judgment of the court, and before the thirty days expired those alternate values were tendered to the plaintiff. The complaint in the present suit claims the values of the mill and gin only at the prices fixed in the detinue recovery. The proof fully sustained this branch of the defense, and the circuit court's rulings in reference thereto are free from error. The engine and boiler present a different and graver [Heard v. Hicks, et al.] question. These had been injured by the fire, but were not destroyed. The defense relied on as to these was tender; but no offer was made to pay for the depreciation caused by the burning. The circuit court refused to receive testimony of such injury, and the plaintiff excepted. The chattel or chattels sued for, together with damages for the detention, are the primary recovery in an action of detinue. But inasmuch as the chattel may perish, or become otherwise inaccessible, the rule and law of this action are that the alternate value of the property sued for must be ascertained and adjudged. And when more chattels than one are the subject of the recovery, the separate values must be ascertained and determined. This, because some of the chattels may, after judgment, be accessible and recoverable in specie, while others may be beyond reach. In this way the successful plaintiff has his rights secured to him, not alone by regaining possession of his property that remains accessible, but, also, by recovering the ascertained value of such part as may have gotten beyond the reach of process. So, when there is a recovery in detinue, the plaintiff must accept the specific thing recovered, unless by some default of the defendant he has armed the plaintiff with the right to demand, at his option, not the property itself, but its ascertained, alter-. nate value. The damages for detention, recoverable by plaintiff, are intended to compensate him for the injury he has sustained by being kept out of the possession and use of his property. Reasonable hire, taking into the account the injury to the chattel caused by its use, if there be no exceptional features in the case, will mark the plaintiff's measure of recovery, under the head of damages for detention. But exceptional cases arise. The chattel detained may sustain a serious injury, very materially impairing its value beyond that which would result ordinarily from its use. Now, as this injury and impairment of value accrue to plaintiff's property while defendant is tortiously withholding from him his right to possess and enjoy it, this abuse becomes a legitimate item and subject for the inquiry of damages for the detention. This, for the reason that if the chattel had not been wrongfully detained, it does not appear that the injury would [Heard v. Hicks, et al.] have ensued. Hence, prima facie, the injury is the result of the detention-the wrongful detention-which withholds the property from its rightful owner. In Wortham v. Gurley, 75 Ala. 354, 363, this court said, "that the damages required to be assessed for the detention of the property included any deterioration in its value occasioned by the default of the wrong-doer, through neglect, abuse, or non-use, during the period of detention. This injury is shown to have resulted from the tortious act of seizure and detention as its natural and proximate cause, and was a legitimate element of damage in addition to the value of rent or hire." See also 2 Sedgewick on Damages, (7th Ed.), 498 et seq.; Freer v. Cowles, 44 Ala. 314; Wilkerson v. McDougal, 48 Ala. 517; Archer v. Williams, 2 Car. & Kir. 26. Having ascertained the extent of liability the defendant Hicks rested under for the use and abuse of the engine pending the detinue suit, what is the liability of his sureties on the replevin bond in relation thereto? They bound themselves as sureties of Hicks that the latter, if cast in the action, would within thirty days surrender the property. They thereby took upon themselves the same duty and obligation to surrender the property which rested on Hicks, and assumed all his liabilities for the non-delivery. We have shown that his possession of the property pending the litigation was that of a tort-feasor, and that this was conclusively shown by the verdict and judgment in the detinue suit. We have shown further that detaining and holding the property, as he did, without right, it was his duty to restore it in the condition it was in when he executed the bond, ordinary wear and tear excepted. Burning a house over the engine could not fail to injure it materially beyond the mere deterioration of it from use, and therefore brought it within the principle that a tender of property thus circumstanced is not a full discharge of the obligation to deliver. The circuit court erred in not receiving testimony of the injury done the engine from the burning, and in holding that the plaintiff was bound to accept the engine, if materialiy damaged, in discharge of the bond. There was some testimony tending to show that after the alleged tender the plaintiff exercised some control over the engine. If this be so, it will present a question [Brooks v. Rogers.] for consideration by the jury, under the court's direction, whether or not he received the engine, and whether he thereby waived, or intended to waive all claim for damage it had sustained. The question in reference to the cattle. If the plaintiff, with knowledge, received one or more cows in lieu of those embraced in the mortgage; or, if after being informed of the substitution, he retained such substituted cows, exercising acts of ownership over them, this would estop him from claiming a forfeiture of the bond for the non-delivery of the cattle, or any part of them. Reversed and remanded. Brooks v. Rogers. Action of Trover by Landlord against Tenant for Wood cut from Rented Premises. 1. Action of trover by landlord against tenant for wood cut from rented premises. While an action of trespass for injuries to land by the tenant can not be maintained by the landlord, so long as the tenancy continues, and trover can not be maintained by the owner of the land against one in adverse possession for the conversion of timber severed from the freehold, a landlord can maintain an action of trover against his tenant, pending the tenancy, for wood wrongfully cut from the demised premises, and converted by the tenant. Such action involves no inquiry as to the title of the land from which the severance was made, and no inquiry as to the possession of said land. 2. A claim of forfeiture by landlord and a denial of forfeiture by tenant do not show adverse holding; exclusion of such evidence not error.— The facts that the landlord claimed a forfeiture of the lands because of the wrongful severance by the tenant of timber from the leased premises, and that the tenant denied the forfeiture, and put the landlord to an action of ejectment to recover the land before the lease expired, which action was pending and being resisted by the tenant when the landlord brought an action of trover against the said tenant to recover for the conversion of the timber wrongfully severed, do not tend to show that the tenant held the land adversely to the landlord; and the exclusion of such evidence in the action of trover is not erroneous, and affords no ground of complaint to the defendant therein. 3. The lease competent evidence in an action of trover by landlord against tenant.-In an action of trover by the landlord against his ten [Brooks v. Rogers. ant, pending the lease, for the conversion of timber wrongfully cut from the demised premises, it is competent for the landlord to introduce in evidence the lease that was current at the time such suit was brought, as showing that the defendant's possession was not adverse to the plaintiff. 4. Same. The fact that part of the lease so introduced in evidence might be looked to by the jury to determine what were the stipulations of a previous lease between the same parties in a certain particular, furnishes no ground for the exclusion of the lease, or the part specially objected to; and the fact that the provision singled out tends to contradict the oral testimony of defendant, of itself, makes the overruling of the motion correct. 5. Bills of exception no part of the record; rulings on the pleading shown only therein will not be considered on appeal.—A bill of exceptions is no part of the record of the trial court, and rulings on the pleading which are not shown by the record proper, but appear only in the bill of exceptions, will not be reviewed by the appellate court. 6. Objection to deposition; when too late.-An objection to a deposition, which is not made before the trial is entered upon, and it is not shown that the ground of the objection transpired or became known to the party objecting only after the trial began, comes too late and is properly overruled. 7. Objection to testimony because not responsive; when properly overruled. If a part of the testimony of a witness, as shown by her deposition, is not responsive to the cross interrogatory under which it was given, but was competent evidence in the cause, and was but the repetition of facts to which the witness had deposed, in response to interrogatories in chief, an objection to such testimony is properly overruled. 8. Measure of damages in trover for conversion of wood.-In an action of trover for the conversion of wood wrongfully cut from the leased premises, the measure of damages is the value of the wood at the time of the conversion, with interest to the time of trial. 9. Burden of proof as to release of cause of action.-In an action of trover by the landlord against the tenant for the conversion of wood wrongfully cut from the rented premises, where the tenant claims that the landlord had released the cause of action, the burden of proving such release is upon the tenant. 10. Landlord's acceptance of rent not a release for conversion of wood by tenant.-While the facts that the acceptance by the landlord of rent from his tenant, for a period subsequent to the wrongful severance of trees from the leased premises and the conversion thereof by the tenant, and that the landlord executed a new lease for a subsequent time, may amount to a waiver of the forfeiture of the lease current at the time of the severance, they do not operate as a release of the tenant's liability for the wood wrongfully severed and converted by him. 11. Charges invasive of the province of the jury.—In an action of trover for the conversion of timber wrongfully cut from the leased prem |