The action of trespass was the earliest tort action, and prior to the passage of the Statute of Westminster II, the field of tort and of trespass may be said to have been co-extensive. Since the passage of that statute the field of tort is practically divided between trespass and trespass on the case. The distinction between trespass and trespass on the case has been discussed at some length under the subject of Torts, to which the reader is referred.1 SECTION 26. TRESPASS ON THE CASE. Trespass on the case is the most important of the forms of actions growing out of the Statute of Westminster II. In general it gives relief for those wrongful acts not covered by the action of trespass. For a further discussion of this action see the Subject of Torts.2 SECTION 27. TROVER. Trover is a specialized form of trespass on the case, and was the last of the important personal actions to come into existence. Trover bears a close resemblance to the action of detinue sur trover, but was not derived from this action. Trover supplanted detinue, for the same reason that assumpsit did debt-namely, the existence of the common procedural difficulties in debt and detinue. "The most curious feature of the action of trover 1 Vol. IV, Subject 8, Chapter II. • Id. is the fact that it is encumbered with more fictions than any other personal action. The declaration alleges a losing by the plaintiff and a finding by the defendant, but neither of these allegations need be proved. Furthermore, if a bailment is alleged as a means of indicating the manner in which the defendant acquired possession, it need not in modern times be proved. A refusal to surrender on demand is also often alleged in the declaration, but this allegation is likewise immaterial where the taking is tortious. "The gist of the action is found in the allegation that the defendant 'converted the goods to his own use.' But oddly enough, even this allegation is also a sort of fiction; for if words mean anything a conversion to one's own use implies an appropriation under such circumstances as to result in benefit to the converter. But nothing is better established than that this is not necessary. Conversion in law does not mean acquisition of property. It is enough that the owner or person having the right to possession has, under conditions more or less clearly defined, been deprived of dominion over the goods. A withholding of possession under an inconsistent claim of title is sufficient." SECTION 28. REPLEVIN. Replevin is the most effective of all actions for the recovery of specific chattels wrongfully taken or withheld. It lies in favor of the owner of such chattels both for the purpose of recovering the possession of the articles and for damages for their wrongful taking and detention. This action more than any other common law action is regulated by statute in the different states. Street's Foundations of Legal CHAPTER VII. THE PLEADINGS. SECTION 29. DEFINITION. "Pleadings of parties' are the allegations made by the parties to a civil or criminal case, for the purpose of definitely presenting the issue to be tried and determined between them." 1 ""The office of pleading is to inform the court and the parties of the facts in issue; the court, that it may declare the law, and the parties, that they may know what to meet by their proof.'"" ""The office of pleading is to state facts, not conclusions of law. It is the duty of the courts to declare the conclusion, and of the parties to state the premises.''' 3 SECTION 30. THE DIFFERENT PLEADINGS. The different pleadings in their order in a common law action are as follows: 1. The Declaration. 2. The Plea. 3. The Replication. 7. The Surrebutter. After the surrebutter the pleadings have no special names. Of the above named pleadings the declaration, replication, surrejoinder, and surrebutter Tucker vs. United States, 151 U. • Hill vs. Mendenhall, 21 Wallace, 'Little York Gold Washing, etc., Co. vs. Keyes, 96 U. S., 202. 455. are by the plaintiff, and the plea, rejoinder, and rebutter by the defendant. The pleadings very seldom continue as far as this point, an "issue" being generally reached at an early stage of the pleading. SECTION 31. THE ISSUE. An issue is a proposition asserted by one side and denied by the other. The object of all pleading is to reach an issue. Issues may be either of law or of fact. True pleadings can only produce issues of fact. Issues of law are produced by the use of demurrers, which, although sometimes classed as pleadings, are in reality rather excuses for not pleading. SECTION 32. THE DECLARATION. The first pleading in the declaration (or count') is the formal statement on the part of the plaintiff of his cause of action. "The province of the declaration is to exhibit, upon the records, the grounds of the plaintiff's cause of action, as well for the purpose of notifying the defendant of the precise character of those grounds, as of regulating his own proofs. When it performs such office, in such manner as to leave no doubt on the mind of the defendant, either as to the nature or origin of the plaintiff's claim, it ought not, on principle, to be adjudged bad." 5 A declaration contains either six or seven parts, according to the nature of the suit. (a) The caption, which designates the court. (b) The title. This contains the names of the parties and the nature of the suit. This name is now practically obsolete. Cook vs. Scott, 1 Gilm. (Ill.), 333, 340. |