disseisin or ejectment. This action may be brought for the recovery of any real property, upon which entry can be made, and of which a sheriff can deliver the actual possession. It cannot be brought to recover an incorporeal hereditament or a personal chattel. Any person, who has a right to enter upon land and hold the exclusive possession thereof, may maintain this action, whether his estate therein be personal or real. Ejectment will lie against any person, who has wrongfully taken or retained possession of the land, to the exclusion of the lawful possessor, and under a claim of right. Certain acts of trespass may also be treated as an ouster, at the election of the lawful possessor, and this action sustained thereon. The plaintiff in ejectment must recover, if at all, by the strength of his own title, not by the weakness of that of the defendant, for actual possession of land gives the possessor a right thereto, as against every one but the lawful possessor. The damages recovered in this action are either nominal, (in which case an action of trespass lies to recover the value of the rents and profits during the period of dispossession,) or are measured by the amount of such rents and profits. The judgment, if for the plaintiff, is that he recover quiet and peaceable possession of the land with damages; which judgment the sheriff enforces by delivering the land into his possession, and collecting and paying over the damages out of the defendant's estate. Read 3 Bl. Comm., pp. 118, 199–206. Bac. Abr., Ejectment. 1 Chitty Pl., pp. 187-196. 2 Greenleaf Ev., §§ 303-337. § 256. Of Personal Actions. A personal action is an action brought to recover the possession of personal property, or to recover damages for some violation of absolute or relative rights. Personal actions are of two kinds: Actions ex delicto, and Actions ex contractu. Actions ex delicto are actions brought to recover the possession of personal property, or to recover damages for some wrong other than a breach of contract. Actions ex contractu are actions brought to recover damages for a breach of contract. Read 3 Bl. Comm., p. 117. Bac. Abr., Actions in General. § 257. Of Trespass. Actions ex delicto are five: Trespass; Case; Trover; Replevin; and Detinue. Trespass is an action brought to recover damages for an injury, to person or property, directly resulting from the wrongful act of another. It is sometimes called an action of trespass vi et armis, from the fact that the wrongs, which it is intended to redress, involve the application of force to the object injured. Hence where the injured object is incorporeal, and not capable of being affected by force, this action will not lie. It is a proper remedy for threats or violence to the person, for false imprisonment, for trespass quare clausum fregit, for asportation of, or forcible damage to, personal property, for abduction, criminal conversation, or battery of a wife, for abduction of a child or ward, and for the battery or seduction of a servant. Read 3 Bl. Comm., pp. 120-123, 138, 142, 151, 211. Bac. Abr., Trespass. 1 Chitty Pl., pp. 125-132, 166-186. 1 Hill. Torts, Ch. iii, §§ 12, 13. 1 Addison Torts, § 97. Cooley Torts, pp. 436–441. 2 Greenleaf Ev., §§ 612–635 a. § 258. Of Trespass on the Case. Case is an action brought to recover damages for an injury, to person or property, indirectly and consequentially resulting from the wrongful act or omission of another. It is sometimes called an action of trespass on the case, from the fact that the wrongs, which it is intended to redress, do not necessarily involve the doing of a specific wrongful act in reference to the object injured, but grow out of the circumstances of the case, among which circumstances is some wrongful omission of the defendant, leading to the injury, or some wrongful act of his, by which are set in operation other and secondary causes, which, in their turn, produce the injury. Hence this action is a proper remedy for nuisance to the person, for libel, slander, and malicious prosecution, for nuisances to land, for waste and disturbance, for damage without force to personal property, for the retainer of a servant, for conspiracy, and for fraud. Read 3 Bl. Comm., pp. 122, 123, 126, 142, 153, 165, 166, 220-237. Bac. Abr., Action on the Case. 1 Chitty Pl., pp. 125–145. 1 Hill. Torts, Ch. iii, §§ 12, 13. Cooley Torts, pp. 436–441. 2 Greenleaf Ev., §§ 223-232 b. § 259. Of Trover. Trover is an action brought to recover damages for the wrongful taking or detention of goods from the possession of another. It is also called conversion, since every unlawful taking or detention of goods is a conversion, or usurpation of dominion over the same. It is a proper remedy for asportation or for detention, where the taking or detaining of the property is the sole element of in jury. Read 3 Bl. Comm., p. 152. Bac. Abr., Trover. 1 Chitty Pl., pp. 146–162. 2 Hill. Torts, Ch. xxv, §§ 1-3. 2 Greenleaf Ev., §§ 636–649. § 260. Of Replevin. Replevin is an action brought to recover the possession of personal property, which is unlawfully taken or detained, and, in some cases, damages for the unlawful asportation or detention. In ancient times, this remedy was principally used in cases of distress, to recover the possession of the property distrained, but has, in many of the States, been so extended as to lie in all cases, where goods are in the possession of one party and ought to be in that of another. The property to be replevied must be capable of actual delivery, and must be distinguishable from all other property. Read 3 Bl. Comm., pp. 145-151. Bac. Abr., Replevin and Avowry. 1 Chitty Pl., pp. 162–166. 1 Hill. Torts, Ch. xvii, §§ 23–26. § 261. Of Detinue. Detinue is also an action brought to recover the possession of personal property, which is unlawfully taken or detained. This remedy is of the same nature as replevin, and is designed to afford the same redress. When the action of replevin was confined principally to cases of original wrongful taking, this was the only remedy whereby goods lawfully taken, but unlawfully detained, could be recovered. The extension of the action of replevin has taken from the action of detinue much of its importance, and, in some of the States, it is now scarcely known. Read 3 Bl. Comm., p. 151. Bac. Abr., Detinue. 1 Chitty Pl., pp. 121-125. 1 Addison Torts, §§ 631-648. § 262. Of Assumpsit. Implied Contracts. Actions ex contractu are three: Assumpsit; Debt; and Covenant. Assumpsit is an action brought to recover damages for the breach of an implied contract, or of an express contract not under seal. Implied contracts are of two classes: (1) Those implied between the state and its subjects, from the nature of the relation between them; (2) Those implied between individuals, from the nature of their dealings with each other. The first class includes the implied contracts to pay all legal taxes and imposts, to fulfil or submit to all judgments legally rendered, and to pay all fines and forfeitures legally incurred. The second class includes the following: (1) The contract called quantum meruit, or the implied agreement of every master to pay his servant what the services are reasonably worth; (2) The contract called quantum valebat, or the implied agreement of the vendee to pay the vendor what the property sold is reasonably worth; (3) The contract of money had and received, or the implied agreement of one who receives another's money, without giving valuable consideration for it, to pay it over to that other on demand; (4) The contract of money laid out and expended, or the implied agree |