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2. By damage

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1. Non-payment of debt-remedy

2. Non-performance of covenants-
Remedy by action

1. Action of debt.

and conversion.

2. Action of case-for damages

1. Of covenant.

2. To compel performance in covenants real.

3. Non-performance of promises-action on the case for damages.

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2. Implied,
arise from

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OF INJURIES TO PERSONAL PROPERTY.

144-167.

First, we are to consider the injuries that may be offered to the rights of personal property; and, of these, first the rights of personal property in possession, and then those that are in action only.

Rights of Personal Property in Possession.

I. The rights of personal property in possession are liable to two species of injuries: the amotion or deprivation of that possession; and the abuse or damage of the chattels while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches: the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.

Unlawful Taking.

I. And first of an unlawful taking. The right of property

in all external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows as a necessary consequence that when I have once gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever either by fraud or force dispossesses me of them, is guilty of a transgression against the law of society, which is a kind of secondary law of nature.

The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with the damages for the loss sustained by such unjust invasion; which is effected by action of replevin. This obtains only in one instance of an unlawful taking, that of a wrongful distress; and this and the action of detinue (of which I shall presently say more) are almost the only actions in which the actual specific possession of the identical personal chattel is restored to the proper owner.

Replevin.

An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause; being a re-delivery of the pledge, or thing taken in distress, to the owner, upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him; after which the distrainor may keep it till tender made of sufficient amends; but must then redeliver it to the owner. And formerly when the party distrained upon intended to dispute the right of the distress, he had no other process by the old common law than by writ of replevin, replegiari facias; which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards to do justice in respect of the matter in dispute in his own county-court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage. For which reason the statute of Marlbridge directs that (without suing a writ out of the chancery) the sheriff immediately upon plaint to him made shall proceed to replevy the goods. Upon application, therefore, either to the sheriff or one of his said deputies, security is to be given. 1. That the party replevying will pursue his action against the distrainor; and 2. That if the right be determined against him he will return the distress again. Besides these pledges, the sufficiency of which is discretionary and at the peril of the sheriff, the statute requires that the officer granting a replevin on a distress for rent shall take a bond with two sureties, in a sum of double the value of the goods distrained, conditioned

to prosecute the suit with effect and without delay, and for the return of the goods; which bond shall be assigned to the avowant or person making cognizance, on request made to the officer; and if forfeited may be sued in the name of the assignee. And certainly as the end of all distresses is only to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff on receiving such security is immediately by his officers, to cause the chattels taken in distress to be restored into the possession of the party distrained upon; unless the distrainor claims a property in the goods so taken. For if by this method of distress the distrainor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has regained possession, being a kind of personal remitter. If, therefore, the distrainor claims any such property, the party replevying must sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted. And if it be found to be in the distrainor, the sheriff can proceed no further, but must return the claim of property to the court of king's bench or common pleas, to be there further prosecuted, if thought advisable, and there finally determined.

But if no claim of property be put in, or if (upon trial) the sheriff's inquest determines it against the distrainor, then the sheriff is to replevy the goods (making use of even force, if the distrainor makes resistance) in case the goods be found within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown; and thereupon the party replevying shall have a writ of capias in withernam, in vetito (or more properly repetito) namio; a term which signifies a second or reciprocal distress, in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods of the distrainor in lieu of the distress formerly taken, and eloigned, or withheld from the owner. So that here is now distress against distress; one being taken to answer the other by way of reprisal, and as a punishment for the illegal behavior of the original distrainor. For which reason goods taken in withernam cannot be replevied till the original distress is forthcoming.

But in common cases the goods are delivered back to the party replevying, who is then bound to bring his action of replevin, which may be prosecuted in the county-court, be the distress of

what value it may. But either party may remove it to the superior courts of the king's bench or common pleas, by writ of recordari or pone; the plaintiff at pleasure, the defendant upon reasonable cause; and also if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no further, so that it is usual to carry it up in the first instance to the courts of Westminster hall. Upon this action brought, and declaration delivered, the distrainor, who is now the defendant, makes avowry; that is, he avows taking the distress in his own right, or the right of his wife; and sets forth the reason of it, as for rent-arrere, damage done, or other cause: or else, if he justifies in another's right as his bailiff or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain; and on the truth and legal merits of this avowry or cognizance the cause is determined. If it be determined for the plaintiff; viz., that the distress was wrongfully taken; he has already got his goods back into his own possession, and shall keep them, and moreover recover damages. But if the defendant prevails, by the default or non-suit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods or chattels (which were distrained and then replevied) are returned again into his custody, to be sold, or otherwise disposed of, as if no replevin had been made.

Other Remedies for Unlawful Takings.

In like manner, other remedies for unlawful takings of a man's goods consist only in recovering a satisfaction in damages. As if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury, which though it doth not amount to felony unless it be done animo furandi, is nevertheless a transgression for which an action of trespass vi et armis will lie; wherein the plaintiff shall not recover the thing itself, but only damages for the loss of it. Or, if committed without force, the party may, at his choice, have another remedy in damages by action of trover and conversion, of which I shall presently say more.

Unlawful Detainer-Detinue.

2. Deprivation of possession may also be by an unjust detainer of another's goods, though the original taking was lawful. As if I distrain another's cattle damage-feasant, and before they are impounded he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends is wrongful, and he shall have an action of replevin against me to recover them; in which he shall recover

damages only for the detention and not for the caption, because the original taking was lawful. Or, if I lend a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining and not in the original taking, and the regular method for me to recover possession is by action of detinue. In this action of detinue it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like, for that cannot be known from other money or corn unless it be in a bag or sack, for then it may be distinguishably marked. In order, therefore, to ground an action of detinue, which is only for the detaining, these points are necessary: 1. That the defendant came lawfully into possession of the goods as either by delivery to him, or finding them. 2. That the plaintiff have a property. 3. That the goods themselves be of some value; and 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the respective values of the several parcels detained, and also damages for the detention. And the judgment is conditional; that the plaintiff recover the said goods, or (if they cannot be had) their respective values and also the damages for detaining them. But there is one disadvantage which attends this action; viz., that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath, and thereby defeat the plaintiff of his remedy: which privilege is grounded on the confidence originally reposed in the bailee by the bailor, in the borrower by the lender, and the like; from whence arose a strong presumptive evidence that in the plaintiff's own opinion the defendant was worthy of credit. But for this reason, the action itself is of late much disused, and has given place to the action of trover.

Trover and Conversion.

This action of trover and conversion was in its original an action of trespass upon the case, for the recovery of damages against such person as had found another's goods and refused to deliver them on demand; but converted them to his own use; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods, gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought against any man who had in his possession by any means whatsoever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion: for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, unless the

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