suggestion made on the record in nature of an avowry or cognizance; or if judgment be given against him on demurrer, then, without any fuch fuggeftion, the defendant may have a writ to inquire into the value of the distress by a jury, and [ 151 ] shall recover the amount of it in damages, if lefs than the arrear of rent; or, if more, then so much as fhall be equal to fuch arrear, with cofts: or, if the nonfuit be after iffue joined, or if a verdict be against the plaintiff, then the jury impannelled to try the caufe fhall affefs fuch arrears for the defendant and if (in any of these cafes) the diftrefs be infufficient to answer the arrears diftreined for, the defendant may take a farther diftrefs or diftreffes. But otherwife, if, pending a replevin for a former diftrefs, a man diftreins again for the fame rent or fervice, then the party is not driven to his action of replevin, but shall have a writ of recaption, and recover damages for the defendant the re-diftreinor's contempt of the process of the law. In like manner, other remedies for other unlawful takings of a man's goods confift only in recovering a fatisfaction in damages. As if a man takes the goods of another out of his actual or virtual poffeffion, without having a lawful title fo to do, it is an injury; which, though it doth not amount to felony unless it be done animo furandi, is nevertheless a tranfgreffion, for which an action of trespass vi et armis will lie; wherein the plaintiff fhall not recover the thing itself, but only damages for the lofs of it. Or, if committed without force, the party may, at his choice, have another remedy in damages by action of trover and converfion, of which I fhall prefently fay more. 2. DEPRIVATION of poffeffion may also be by an unjust detainer of another's goods, though the original taking was lawful. As if I diftrein another's cattle damage-feafant, and before they are impounded he tenders me fufficient amends; now, though the original taking was lawful, my fubfequent detainment of them after tender of amends is wrongful, and f F, N. B. 71. e Stat, 17 Cap. II. c. 7. he he fhall have an action of replevin againft me to recover them3: in which he fhall recover damages only for the detention and not [152] for the caption, because the original taking was lawful. Or, if I lend a man a horse, and he afterwards refufes to restore it, this injury confifts in the detaining, and not in the original taking, and the regular method for me to recover poffeffion is by action of detinue". In this action, of detinue, it is necessary to afcertain the thing detained, in fuch a manner as that it may be fpecifically known and recovered. Therefore it cannot be brought for money, corn, or the like; for that cannot be known from other money or corn; unlefs it be in a bag or a fack, for then it may be diftinguishably marked. In order therefore to ground an action of detinue, which is only for the detaining, thefe points are neceffary: 1. That the defendant came lawfully into poffeffion 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 fome value; and 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, affefs the refpective values of the feveral parcels detained, and alfo damages for the detention. And the judgment is conditional; that the plaintiff recover the faid goods, or (if they cannot be had) their respective values, and alfo the damages for detaining them. But there is one difadvantage 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 repofed in the bailee by the bailor, in the borrower by the lender, and the like; from whence arose a strong prefumptive 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 difufed, and has given place to the action of trover. THIS action of trover and converfion, was in it's original an action of trefpafs upon the cafe, for recovery of damages & F. N. B. 69. j Co. Entr. 170. Cro. Jac. 681. k Co. Litt. 295. against 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 [ 153 ] of trover and converfion. The freedom of this action from wager of law, and the lefs degree of certainty requifite in defcribing the goods', gave it fo confiderable 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 poffeffion by any means whatsoever the perfonal goods of another, and fold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the converfion: for any man may take the goods of another into poffeffion, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be for ever unknown": and therefore he must not convert them to his own use, which the law prefumes him to do, if he refuses to restore them to the owner: for which reafon such refufal alone is, prima faciae, fufficient evidence of a converfion". The fact of the finding, or trover, is therefore now totally immaterial: for the plaintiff needs only to fuggeft (as words of form) that he loft fuch goods, and that the defendant found them: and, if he proves that the goods are his property, and that the defendant had them in his poffeffion, it is fufficient. 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. As to the damage that may be offered to things perfonal, while in the poffeffion of the owner, as hunting a man's deer, fhooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redress them, which are in two a 10 Rep. 56. 1 Salk. 654. See book I. ch. 8. book II, ch. 1. and 26. shapes; fhapes; by action of trespass vi et armis, where the act is in itself immediately injurious to another's property, and there[154] fore neceffarily accompanied with fome degree of force; and by fpecial action on the cafe, where the act is in itself indifferent, and the injury only confequential, and therefore arifing without any breach of the peace. In both of which fuits the plaintiff fhall recover damages, in proportion to the injury which he proves that his property has fuftained. And it is not material whether the damage be done by the defendant himself, or his fervants by his direction; for the action will Jie against the mafter as well as the servant. And, if a man keeps a dog or other brute animal, ufed to do mischief, as by worrying sheep, or the like, the owner muft answer for the confequences, if he knows of fuch evil habit P (2). II. HITHERTO of injuries affecting the right of things perfonal, in poffeffion. We are next to confider those which regard things in action only; or such rights as are founded on, and arise from contracts; the nature and several divifions of which were explained in the preceding volume. The violation, or non-performance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then confidered: but I fhall now confider them in a more comprehensive view, by here making only a twofold divifion of contracts; viz. contracts exprefs, and contracts implied; and pointing out the injuries that arise from the violation of each, with their refpective remedies. EXPRESS contracts include three diftinct fpecies; debts, covenants, and promises. Noy's Max. c. 44. P Cro. Car. 254. 487. See book II. ch. 30. (2) But the owner is not answerable for the first mischief done by a dog, a bull, or other tame animal, Bull. N. P. 77. Yet if he fhould carry his dog into a field, where he himself is a trespasser, and the dog should kill fheep, this, though the first offence, might I conceive be stated and proved as an aggravation of the trespass. 7 I. THE 1. THE legal acceptation of debt is, a fum of money due by certain and exprefs agreement: as, by a bond for a determinatefum; a bill or note; a special bargain; or a rent reserved on a leafe; where the quantity is fixed and fpecific, and does not depend upon any fubfequent valuation to fettle it. The non-payment of these is an injury, for which the proper remedy is by action of debt, to compel the performance of the contract and recover the specifical fum due. This is the [155] shortest and surest remedy; particularly where the debt arises upon a fpecialty, that is, upon a deed or inftrument under feal. So alfo, 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 fettled price, I am not liable to an action of debt, but a special action on the cafe, according to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under feal; wherein the fum due is clearly and precifely expreffed: for, in cafe of fuch an action upon a fimple contract, the plaintiff labours under two difficulties. First, the defendant has here the fame advantage as in an action of detinue, that of waging his law, or purging himself of the debt by oath, if he thinks propers. Secondly, in an action of debt the plaintiff must prove the whole debt he claims, or recover nothing at all. For the debt is one fingle caufe of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the fame contract whereof the performance is fued for. If therefore I bring an action of debt for 307, I am not at liberty to prove a debt of 201, and recover a verdict thereon; any more than if I bring an action of detinue for a horfe, I can thereby recover an ox. For I fail in the proof of that contract, which my action or complaint has alleged to be fpecific, exprefs, and determinate. But in an action on the cafe, on what is called an indebitatus affumpfit, which is not brought to compel a specific perform F. N. B. 119. See appendix, N° III. § 1. 14 Rep. 94 Bro. Le y gager. 93. Dyer. 219. 2 Roll Abr. 706. 1 Show. 215. ance |