count in trover: now I think the action of trover can only be maintained for some specific property, and in that respect it does not differ from the action of detinue. I used the word property, in order that I may not be supposed to confine it to goods and chattels, properly so called; because trover will lie for a bank note or promissory note. It is true also that it will lie for so many pieces of silver, although they are in the shape of coin; but then they are to be described as specific articles. In the cases in which trover lies, the defendant does not redeem himself from liability, by tendering some other article of equal value. The action in such case proceeds upon the foundation of the plaintiff being entitled to the same identical article. Does this count allege that any specific article, or any specific property, was converted? It speaks of a sum of money merely, which is an abstract idea. The money may be composed of two crown pieces, four half-crowns, ten shillings, or twenty sixpences. I am of opinion, therefore, that there is not merely a want of certainty in the count, but that the thing described is not that for which trover will lie. It is merely described as a sum of money, which does not convey the idea of any specific article of property; and on that ground I think the count is demurrable. BAYLEY J. We are to resist every innovation upon the ancient forms of action, unless we can clearly see our way through all the consequences which may result from the innovation. At common law, there were certain formed writs in the register, such as actions in detinue, assumpsit, debt, covenant, &c. The statute of Westm. 2, 13 Edw. 1. c. 24. gave the action on the case; and the object of that statute was to give a remedy in those instances in which there was no formed writ in the register. In Slade's case (e), the question (e) 4 Rep. 92. 1822. ORTON against BUTLER. 1822. ORTON against BUTLER. was discussed, whether for the bargain and sale of wheat and rye growing on the land, the proper action was assumpsit, or case; and it was held, that assumpsit was the proper form of action. From that time down to the present, the remedy for money had and received has been either debt or assumpsit, and no third description of action has been brought. Why, then, is the plaintiff to be at liberty, at this distance of time, to call in aid that statute to which I have referred, and form a third description of action for a cause for which there had been two forms previously established?: What would be the consequence of such an innovation?-why, that in very many instances the provi-> sions which have been made from time to time by different acts of parliament (considering the action of. debt and assumpsit as the proper remedies for money. had and received), would, by that means, be evaded. One or two instances have been put in argument on behalf of the defendant, shewing the mischief that might result from a departure from the usual form of action in such cases. The observations resulting from the statute 3 Jac. 1. c. 15. s. 4. and similar statutes, enabling persons to recover small debts within local jurisdictions, and giving the defendant costs, in case, the plaintiff does not recover damages to a certain amount, are exceedingly strong, and, I think, unanswerable. I am of opinion, therefore, that the plaintiff is not at liberty, at this distance of time, to resort to a new description of action, contrary to the long settled usage in such cases. HOLROYD J. This count, in point of form, is not like a count in trover. It is argued, however, that it is so in effect; namely, by stating that it was money had and received by the defendant to the use of the plaintiff, to be paid to him on request, and that in the latter part it charges a conversion. Now there is no part of this count which alleges the money to be the property of the plaintiff, or that it was ever in his possession; and it is held in Com. Dig. tit. Action on the Case upon Trover, G. 1. that the declaration must shew that there is a property and possession in the thing in the plaintiff. All that is stated here is, that the defendant received from some other person a sum of money to be paid to the plaintiff. That does not take away the right of the property in the defendant, unless the declaration shews that the plaintiff has assented to the defendant's receiving it. There is nothing here to shew any assent on the part of the plaintiff, that it should become his money at the time of the alleged conversion. The declaration must shew that the property belonged to the plaintiff at the time the action commenced. Besides this, I take it there never was an instance of an action in this form maintained; the regular form of action in the register being debt and assumpsit. In Slade's case, the question was determined, mainly on the ground of ancient precedents in the Register and elsewhere. The Court consider them as having great weight in their determination; and for the same reason I am clearly of opinion, that this count cannot be sustained. BEST J. I am of the same opinion. This is a departure from all precedents; and even if I were satisfied that it might not be attended with inconvenience, still I think we ought not to permit any innovation upon the ancient forms of proceeding, which are to be.. considered as part of the settled law of the land. As well might we alter the doctrine of descents as to freehold property, as alter the long established forms prescribed for the recovery of debts. We are not at liberty to do so. There is a broad distinction between causes of action arising er contractu and ex delicto. This is one arising ex contractu; there is no wrong 1822. ORTON against BUTLER. 1822. ORTON against BUTLER. stated, but merely a breach of contract; and the plaintiff is not at liberty to convert a mere matter of contract into a tort. The consequences of a departure from the ancient forms have been well pointed out in argument. In addition to those may be mentioned, that by altering the remedy, the defendant would be deprived of his plea of tender, and also of the advantage of paying money into Court. But if no such consequences were to follow, I think we ought to adhere to those ancient forms which have been perfected by the wisdom of ages, and confirmed in their utility by the experience of many centuries. Judgment for the defendant, on demurrer (ƒ). (f) Vide Dixon v. Clifton, 2 Wils. 319; and Govett v. Radinge, 3 East, 62. POSTEA. SANDFORD against PORTER, and same against CLARKE. THESE were actions of debt, founded on the statute 2 & 3 Edw. 6. c. 13. for not setting out tithes. The defendants severally pleaded nil debet; and at the last summer assizes for the county of Essex, the jury found for the plaintiff in the first-mentioned case a 1820. 12th Feb. Where the jury, in an action of debt, on 2 & 3 Ed. 6. c. 13. which gives treble value for not setting out tithes, found to the single verdict for 70l., being the single value of the tithes mounted only not set out; and in the second case a verdict for 401., being of the like denomination. Bolland now moved for a rule to shew cause why the postea in each case should not be amended, by entering the verdict for treble the value found by the jury, pursuant to the statute on which the actions were founded; and he referred to Baldwin v. Gillett (a), as an authority in support of the motion; but PER CURIAM. This motion cannot be sustained. The action is founded in debt, and the defendant has pleaded nil debet. Upon that issue the jury have found that the defendant owes the single value. The statute requires that the treble value should be given by the jury. How then can we supersede the office of the jury, by amending the postea, in a matter which exclusively falls under their consideration? If we were now to amend the postea, as required, that would be error on the record. We therefore cannot amend (a) Godbolt, 341. value, held that the Court could not amend the postea, by en.. tering the verdict for the treble value. |