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Detinue. One may recover possession of the property unlawfully detained, by an action of detinue. One must ascertain the thing detained, in such manner that it may be specifically kuown and recovered. It cannot be brought for money, corn and the like, for that is not distinguishable from other money and corn, unless it be corn in a marked sack.
Requisites in Actions of Detinue. 1. That the defendant came lawfully into possession of the goods, either by delivery to him or finding them. 2. That the plaintiff has a property. 3. That the goods have some value. 4. That they be ascertained in point of identity. Upon this the jury, if the verdict be for the plaintiff, assess the respective values of the parcels detained and also damages for detention. The judgment is conditional, that the plaintiff recover the said goods or their respective values, and also damages for detaining them. TROVER AND CONVERSION.
Origin of the Action. Originally this was an action of trespass upon the case, for 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. By a fiction of law, actions of trover were finally 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 Conversion. The injury lies in the conversion, for any man may take into possession the goods of another, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be forever unknown, and therefore he must not convert them to his own use, which the law presumes him to do, if he refuses them to the owner, for which reason such refusal also is, prima facie, sufficient evidence of a conversion. The fact of the finding or trover is therefore now totally immaterial, for the plaintiff need only suggest as a form, that he lost the goods, and that the defendant found them, and if he proves that the goods are his property, and that the defendant has them in his possession, it is sufficient. But a conversion must be fully proved, and then, in this action, the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself, which nothing will recover but an action of detinue or replevin.
Obvious Damage. Damage offered to things personal, while in the possession of the owner, as by taking from the value of a chattel, or making it of less value than before, is too obvious for explanation.
Two Forms of Action. Two remedies exist in law; by action of trespass vi et armis, where the act is in itself immediately injurious to another's property, and therefore necessarily accompanied by some degree of force; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. Damages are obtainable in both suits in proportion to the injury to the property, and it is not material, whether the damage be done by the defendant himself, or by his servants under his direction; for the action will lie against the master as well as the servant.1
SECOND. THINGS IN ACTION.
Nature. These rights are founded on and arise from contracts, the nature and division of which were explained in the preceding volume.
Division of Contracts. Contracts express and contracts implied. We shall point out the injuries that arise from the violation of each, with their respective remedies.
Express Contracts. Express contracts include debts, covenants and promises. 1. DEBT.
Defined. This is a sum of money due by certain and express agreement, as by a bond for a fixed sum, a bill or note, a special bargain, or a rent reserved on a lease, where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper action is debt, to compel the performance of the contract and recover the specified sum due. This is the shortest and surest remedy, particularly where the debt arises upon a specialty, that is, upon an instrument under seal. So also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me, for this is also a determinate contract, but if I agree for no settled price, I am not liable to an action of debt, but to a special action on the case, according to the nature of my contract.
1 Example. If a man keep a dog, accustomed to do mischief, as by worrying sheep, eu., une vwnčí, cognizari of such habit, must answer for the consesequence.
Brought upon Specialties, Actions of debt are now seldom brought, but upon specialties, wherein the sum due is precisely expressed.
Damages pro tanto Only, Part Performance. In an action on the case, on what is called an indebitatus assumpsit, which is not brought to compel a specific performance of the contract, but to recover damages for its non-performance, the implied assumpsit, and consequently the damages for the breach of it, are in their nature indeterminate, and one is not confined to the precise demand stated in the declaration. For if any debt be proved less than the sum demanded, the law will raise a promise pro tanto, and the damages will be proportioned to the actual debt. And even if the action is of debt, where the contract is proved or admitted, if the defendant can show that he has discharged any part of it, the plaintiff shall recover the residue.
Form of the Writ. Debet and Detinet. It is sometimes in the debet and detinet, and sometimes in the detinet only. That is, it states, either that the defendant owes and unjustly detains the debt or thing in question, or only that he unjustly detains it. It is brought in the debet as well as detinet, when sued by one of the original contracting parties, who personally gave the credit against another, who personally incurred the debt, or against his heirs, if they are bound to the payment, as by the obligee against the obligor, the landlord against the tenant. But if brought by or against an executor, for a debt due to or from the testator, this not being his own debt, shall be sued for in the detinet only. So also if the action be for goods, or for a horse, the writ shall be in the detinet only, for nothing but money, for which I or my ancestors in my name have personally contracted, is properly considered as my debt. A writ of debt in the detinet only for goods, is merely a writ of detinue, and followed by the same judgment.
: In an action of debt, a plaintiff may prove and recover less than the sum demanded in the writ.
or to omit one, is another species of express contract, the violation or breach of which is a civil injury.
Language of the Writ. The remedy for this is by a writ of covenant, which directs the sheriff to command the defendant to keep his covenant with the plaintiff, without specifying its nature, or show good cause to the contrary; and if he does not, or the covenant is so broken, that it cannot now be specifically performed, then the subsequent proceedings should set forth with precision the covenant, the breach, and the loss which has happened thereby; whereupon the jury will give damages for the injury sustained by the plaintiff.
Covenant Real. This species differs from the rest. It is a covenant to convey or dispose of lands, which seems to be partly of a personal and partly of a real nature. The remedy for this is by a special writ of covenant for a specific performance of the contract, concerning certain lands described in the writ. It directs the sheriff to command the defendant, termed the deforciant, to keep the covenant made between the plaintiff and him, concerning the identical lands in question. On this process, fines are levied at common law, the plaintiff, or person to whom the fine is levied, bringing a writ of covenant, in which he suggests some agreement to have been made between him and the deforciant, touching these lands, for the completion of which contract he brings this action. And for the end of this difference, the fine is made, whereby the deforciant or cognizor, acknowledges the tenements to be the right of the plaintiff or cognizee.
Leases for Years. As these leases were formerly considered only as contracts or covenants for the enjoyment of rents, and not as the conveyance of any real interest in the land, the ancient remedy for the lessee, if ejected, was by a writ of covenant against the lessor to recover the term, if in being, and damages in case the ouster was committed by the lessor himself; or if the term was expired, or the ouster was committed by a stranger, claiming by an elder title, then to recover damages only.
Parties and Privies. At common law, no persons could take advantage of any covenant or condition, except such as were parties or privies thereto, and of course no grantee or assignee of any reversion or rent. To remedy this, a statute was passed, giving the assignee of a reversion, after notice of such assignment, the same remedies against a particular tenant by entry or action, for waste or other forfeitures, non-payment of rent and non-performance of covenants, as the assignor himself might have had, and also making him equally liable for acts agreed to be performed by the assigaor, except in the case of warranty. 3. PROMISES.
Defined. A promise is in the nature of a verbal covenant, and wants pothing but the solemnity of writing and sealing to make it absolutely the same. If it be to do an explicit act, it is an express contract, as much as any covenant, and the breach of it is an equal injury. The remedy indeed is not. exactly the same, since instead of an action of covenant, there only lies an action upon the case, for what is called the assumpsit, or undertaking of the plaintiff; the failure of performing which is the wrong or injury done to the plaintiff, the damages whereof a jury is to settle.' So in the case of a simple contract, if the debtor promises to pay the debt, and does not, this breach of promise entitles the creditor to his action on the case, instead of being driven to his action of debt.
Promissory Note. A promissory note to pay money on a day certain is an express assumpsit, and the payee by common law or the endorsee by statute, may recover the value of the note in damages, if it be unpaid. STATUTE OF FRAUDS.
Verbal Promise Insufficient. Some agreements, even if expressly made, are deemed of so important a nature, that they ought not to rest in verbal promise only, which cannot be proved, but by the memory of witnesses, which sometimes induces perjury. To prevent this, the statute of frauds and perjuries enacts, that in the five following cases, no verbal promise will suffice to ground an action, but at the least some note or memorandum of such promise shall be made in writing, and signed by the party to be charged therewith.
Written Agreement Requisite. 1. Where an executor or administrator promises to answer damages out of his own estate.
2. Where a man undertakes to answer for the debt, default or miscarriage of another.
1 As if a builder promises A, that he will build his house within a time limited, and fails to do it. A has an action on the case against the builder for this breach of his promise or assumpsit, and shall recover pecuniary satisfaction for the injury sustained by such delay.