Debt-Detinue. SEC. IV. DEBT. Debt lies for the recovery of a sum certain: First, on records, as judgments or recognizances: Secondly, on specialties, as single bills or bonds, by or against the parties, or their personal representatives, or against heirs or devisees; or upon articles of agreement to pay money, leases, mortgages, &c.: Thirdly, upon simple contracts, as for services and works, moneys, &c.: it being a rule that wherever indebitatus assumpsit lies, debt will also lie; or on bills of exchange, bankers drafts, promissory notes, bylaws, or foreign judgments, or for fines and amercements, &c.: or lastly, it is founded in maleficio, and lies upon acts of the legislature by the parties grieved, or common informers. This action has been greatly extended of late, both by the courts in England and this country. In its original formation, it was embarrassed by the right of the defendant to wage his law, which no longer exists, and was so strictly confined as respected the amount to be recovered, as to require the party to recover the precise sum, or be defeated. These restrictions no longer attend it, and it may now be laid down as a rule, that debt lies upon any contract, express or implied, by record, specialty, or simple contract, whereby a determinate sum of money, capable of being reduced to a certainty, becomes due to another. 13 It seems, however, that covenant and not debt is the proper action on a contract for the payment of a certain sum of money in specific articles,14 SEC. V. DETINUE. This action, and Replevin, are the only remedies, by suit at law, for the recovery of a personal chattel, in specie. The gist of the action is the wrongful detainer, and not the original taking.15 It lies against any person who wrongfully became possessed of the chattel,16 or who acquired possession by lawful means, as by delivery, bailment, or finding. The goods must be distinguishable from other property, so that, if the plaintiff recover, the sheriff may be able to deliver them; thus it lies for a deed, or horse; or for money, or corn, in a bag or chest. The plaintiff must have an absolute, or general, or special property in the specific goods, and the right to the immediate possession thereof at the time the action is commenced; but it is not necessary that he should have had the possession before suit brought.17 It cannot be supported against a person who never had possession of the goods. This action is seldom brought, as it is virtually superseded by the action of (13) 1 Mason 296. 300; 2 Whea. 389; 10 Wen. 341; 1 Pet. C. C. 145. (15) 3 Black. Com. 152. (16) 1 Chit. Pl. 8 Am. ed. 123; 3 Hill N. Y. (14) 1 Blackf. 216. 230; 1 Halst. 222; 1 Bibb 282. 356. 487; 2 Bibb 584. (17) 1 Chit. Pl. 8 Am. ed. 120, 121. Replevin. Replevin; which, under the Statutes of Ohio, gives a remedy in almost all cases of a wrongful detainer of personal property. SEC. VI. REPLEVIN. At common law this action was confined to cases where trespass would have been sustainable, on account of the tortiousness of the original taking.18 When the taking was lawful, and the subsequent detainer or conversion alone formed the ground of the action, Detinue was the only remedy by which goods, in specie, could be recovered. But, by statute,19 the action of Replevin has been extended to all cases where goods or chattels have been wrongfully detained, whether the original taking were lawful or unlawful.20 But it will not lie at the suit of a person whose property has been taken, either on a judgment against him, or for the payment of a tax, fine, or amercement, assessed against him,21 or by virtue of any writ of replevin, or any other mesne or final process whatsoever, issued against him.22 To render a person liable to an action of replevin, it is necessary that he should have had either actual or constructive possession of the goods, otherwise he cannot, it is said, be charged with a wrongful detainer.23 In order to maintain the action of Replevin the plaintiff must have either such general property in the goods detained, or special property therein, as to give him the right of immediate possession at the time of the detention and issuing of the writ.24 The surety to an officer that the judgment debtor will redeliver the goods levied upon, has not, it seems, sufficient interest to maintain this action.25 It seems that a person, not the execution defendant, may have replevin under our statute, against an officer for goods taken in execution.26 And it is clear that the action will lie, where the property taken by virtue of the execution, is taken from the possession of the plaintiff in replevin, and not from the possession of the defendant in the execution.26 (18) 10 Johns. 369; 5 Mass. 283, 284; 7 Johns. 140; 17 Johns. 116; see 3 Hill N. Y. 282. (19) Stat. 784, §1. execution of his duty when he seized the property; that the property was in the custody of the law, under the attachment, and, consequently, the (20) 7 Ohio Rep. (Part 2) 133; 5 Ohio Rep. 202. plaintiff to the attachment had no control or pow(21) Stat. 785, §1; 787, §12. (22) Stat. 787, §12. (23) 7 Ohio Rep. (Part 2,) 133. The case was this: A creditor's attachment was issued irregularly, (being without affidavit,) and by the direction of the plaintiff in attachment, the constable seized the goods of the defendant in attachment, who brought his action of replevin against the plaintiff in attachment, the goods having remained in the hands of the constable until replevied. The court held, that the constable was, notwithstanding the irregularity of the writ, in the due er over it, and the defendant could not, therefore, be charged with a wrongful detainer of that which never was, even constructively, in his possession. (24) Stat. 787, §12; 785, 786, §5, 6; 2 Blackf. 172; 7 T. R. 9; Co. Lit. 145(b); see 1 Johns. 380; 1 Hill N. Y. 473; 1 Chit. Pl. 8 Am. ed. 163, 150; 20 Johns. 465; 3 Pick. 255. 258; 3 Hill, N. Y., 576; 15 Mass. 310; 15 Pick. 63. (25) 9 Mass. 265, 109; 5 Mass. 203; See 16 Wend. 335, and cases there cited. (26) 2 Blackf. 172; Wright, 159; 3 Wend. 280; 7 Johns. 140; see 2 Wend. 475; 5 Mass. 280; Case. An equitable assigner of a chose in action, cannot maintain replevin, to recover possession of it against the legal owner. Where the possession of the goods was originally lawful, there must, in general, be a demand and refusal of delivery, before replevin, ́in the detinet, can be maintained.28 SEC. VII. CASE. This action, in its most comprehensive signification, includes assumpsit; but is usually understood to mean an action, in form ex delicto, to recover damages for torts, not committed with force, actual or implied; or, having been occasioned by force, where the matter affected was not tangible, or the injury was not direct and immediate, but consequential; or, where the interest in the property injured was only in reversion; in all which cases, the action on the case, and not trespass, was, before the passage of the recent statute of the state of Ohio, which will be hereafter noticed, alone sustainable. Where, however, the injury was immediate, to personal property, not held in reversion, the action, before the enactment of the statute, must have been trespass, whether the act were done wilfully, or by negligence, or want of care.29 Some of the useless distinctions between the action on the case, and the action of trespass, have been very properly abrogated by a recent statute of the state of Ohio,30 which provides, that where, by the wrongful act of any person, an injury is produced, either to the person, personal property, or rights of another, or to his servant, child, or wife, for which an action of trespass may, by law, be brought, an action of trespass on the case may be brought, to recover damages for such injury, whether it was wilful, or accompanied by force or not, and whether such injury was a direct and immediate consequence from such wrongful act, or whether it was consequential and indirect. The effect of this statute will be, that the action of trespass will seldom be brought, except for injuries to real estate, or where the injury is clearly immediate.31 Torts, of the nature above mentioned, for which an action on the case may, by the common law, be maintained, are, 1st, to the absolute or relative rights of persons; 2dly, to personal property, in possession, or reversion; or, 3dly, to real property, corporeal, or incorporeal, in possession, or reversion. Case is the proper remedy for injuries to the absolute rights of persons, 7 Harr. & Johns. 55; Com. Dig. Title Replevin, D; 20 Johns. 465; 7 Ohio Rep., (Part 2,) 133; 10 Wend. 349; 3 Wend. 280; Dong. 40; 14 Johns. 86; 8 Pick. 183; 2 Stra. 1184; Willes 672; 1 Wend. 109; 1 Mason 322; 3 Stephens N. P. 2484; 17 Wend. 53; 25 Wend. 614; 23 Wend. 372; 9 Cowen, 295. (27) 2 Met. 127. (28) 24 Wend. 169; 3 Hill, N. Y., 282. 19 Johns. 381; 6 Serg. & R. 348; 2 Dana, 378; (31) There is a like statute in the State of New York. 2 R. S. 456, §16, 2d. ed. And it is there held that the statute does not change the rights of parties, but affects only the remedy. 19 Wend. 313. Case. not immediate, but consequential; as for keeping mischievous animals, having notice of their propensity,32 or for special damage arising from a public nuisance.33 But if the injury were immediate, as if the defendant incited his dog to bite another; or, let loose a dangerous animal; or if, in the act of throwing a log into the public street, it hurt the plaintiff; or, if an injury be committed by cattle to land ;34 or, the cattle of the plaintiff be shot by the defendant,35 the action may be trespass.36 Also, whenever an injury to a person is occasioned by regular process of a court of competent jurisdiction, though maliciously adopted, case is the proper remedy; and trespass was not sustainable, until the passage of the act above referred to,37 for a malicious arrest, or a malicious prosecution.38 So, it is the proper remedy for slanders and libels, and the only remedy against sheriffs, justices of the peace, and other officers, acting ministerially, and not judicially, for refusing bail, &c.39 It lies against surgeons, agents, &c. for improper treatment, or for want of skill or care, though assumpsit is also sustainable. Actions for injuries to relative rights, as for seducing or harboring wives, enticing away or harboring apprentices, are properly in case; 40 though it was common to declare in trespass for criminal conversation and for debauching daughters and servants, and especially where the action was for an injury really committed with force, as beating, &c. For injuries to personal property, not committed with force, or not immediate, or where the plaintiff's right thereto is in reversion, case is the proper remedy. Though assumpsit is the usual remedy, yet case may be maintained against attorneys and other agents, for neglect or breach of duty, or misfeasance; and against bailees, carriers, warehousemen and others, having the use or care of personal property, whose liability is founded as well on the common law as on (32) See post. Chap. 5, § II, 9; Ld.Raym. 109; 606, 7, 8; 13 Johns. 339; 19 Eng. C. L. Rep. 394; 17 Wend 496. (37) 18 Eng. C. L. Rep. 344; 1 Chit. Pl. 8 Am. Ed. 133. A very full exposition of the English cases, and when trespass and when case ought to (33) 4 Wend. 9; 7 Cowen, 609; 9 Wend. 315; have been brought under the law as it stood pre11 Id. 539; 4 Ohio Rep. 377. vious to the passage of the act above referred to, (34) Chit. Pl. 8 Am. Ed. 133, and cases there will be found in Chit. Pl. 8 Am Ed. 181 to 186. cited. (35) 3 Halst. 226. (36) Where the defendant ascended in a balloon, which came down into the plaintiff's garden, and a crowd of people broke the fences into the garden, (to assist the defendant, there in peril from being entangled,) and trod down vegetables and flowers, the defendant was held answerable in trespass, for all the damage done to the garden, on the ground that, by ascending in the balloon, and, voluntarily and designedly, placing himself in a situation in which he might require help, he invited and produced the acts of the crowd. 19 Johns. 381. And see, also, the following: 6 Ohio Rep. 144, 147; (39) See post. Chap. 5, § II. (40) See post. Chap. 5, § I, 2; Stat. 66, §14; 42 v. Stat. 72, §4. Case. a contract, express or implied.41 And, in general, where there is an express promise, and a legal obligation results from it, then the plaintiff's cause of action is most accurately described in assumpsit, in which the promise is stated as the gist of the action. But where, from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, there, although assumpsit may be maintainable, upon a promise implied by law to do the act, still an action on the case, founded on the tort, is the more proper form of action, in which the plaintiff states the fact out of which the legal obligation arises, the obligation itself, the breach of it, and the damages resulting from that breach.42 This is also the proper action against common carriers, innkeepers, smiths, ferrymen and stage proprietors, who in the course of their employment, unreasonably refuse to exercise their calling; as where a carrier, having convenience, refuses to carry goods.43 Case and not trespass lies against a corporation aggregate, for making its of ficers commit a trespass.44 It lies against township trustees for refusing a lawful vote, although there be no proof of malice.45 In reference to wrongs committed to personal property, it is material to consider the nature of the plaintiff's interest or property, in the goods or personalty affected. If he have only a reversionary interest, he must sue in case, and neither trover nor trespass can be sustained. But if the plaintiff was entitled to the immediate possession of the goods at the time of the injury thereto, he may, in general, sue in case or trover; though trespass also lies, at the option of the plaintiff, where the tort was direct, and accompanied by force, and the plaintiff was in fact, or law, in possession of the goods. Case or assumpsit may be supported for a false warranty on the sale of goods, but for a breach of an express or implied contract of warranty, it is usual to declare in assumpsit, in order that a count for money had and received, to recover back the consideration paid may be included in the declaration.50 In cases of injuries by fraud, wholly unconnected with contract, case is the proper remedy; as for deceitfully representing a person fit to be trusted,51 or for the assertion of a falsehood with a fradulent intent, as to an existing fact, where a direct, positive and material injury results from such assertion;52 and for fraud (41) 12 Eng. C. L. Rep. 327; 13 Id. 170; 18 Id. 227; 2 Wils. 319; 6 East. 333; Wright 229. (12) Per LITTLEDALE, J. 12 Eng. C. L. Rep. 335; Wright 229; 35 Eng. C. L. Rep. 292; 20 Id. 412; 12 Id. 327; 2 Blackf. 178. (13) 1 Saund. 312, e note 2; 5 T. R. 149, 150. (44) Wright 603; 9 Ohio Rep. 31; 4 Id. 513. (45) 11 Ohio Rep. 372; see 8 Cowen 178. (50) Where the defendant said, "the horse is sound, but mind, I do not warrant him," and it was proved that he knew it was unsound; Lord Tenterden held that he was properly sued in as sumpsit, on his promise that he was sound. 1 Chit. Pl. 8 Am. ed. 136, 137. So, where the defendant refused to warrant, but said, the "horse was sound as far as he knew," with like proof of the defendant's knowledge, it was held that he was liable in assumpsit, as on a promise that the horse was sound, to the best of his knowledge. 19 Eng. C. L. Rep. 267. (51) 8 Johns. 23; 1 Met. 1; 7 Wend, 9; 6 Johns. 181; 11 Wend. 374; 6 Cowen 346; 14 Wend. 126; 12 Wend, 176. (52) 2 Wend. 385; 3 T. R, 51. |