sary that there should be more than one form of action for the same identical injury; and a perfect system of remedial law would probably avoid concurrent remedies, for the sake of simplicity; but we shall find that under the existing system, most of the injuries for which redress is sought, admit of concurrent remedies by different actions. (a)

Assumpsit. (b) The action of assumpsit has no precedent in the register of writs, but originated under the statute of Westminster. It is, therefore, one of the actions on the case; but from its general use, as before observed, it has acquired a generic character. It is the remedy provided for the recovery of damages for the breach of contract not under seal. It makes no difference whether the contract be written or verbal, express or implied; or what it be for; whether to pay money, or to perform or abstain from any other act. If the facts be such as to make out a contract, promise, or undertaking, by expression or inference, and there be no seal, assumpsit will lie. It takes its name from the Latin word assumpsit, originally used when the proceedings were in that language, to describe the undertaking or promise. It will be observed that assumpsit can never be a concurrent remedy with covenant, on account of the seal; but it is concurrent with debt, whenever there is an unsealed contract to pay a liquidated sum of money, or a sum capable of being liquidated. It will also be observed, that by taking the seal away from any contract whatever, assumpsit will lie upon such contract, instead of covenant. By abolishing seals, therefore, the two actions would be consolidated; and by going one step further and abolishing the action of debt, which might be readily dispensed with, we should have a simple remedy for all cases of contract. (c)

(a) Declaration in Covenant. For that by a certain indenture then and there made between the parties, sealed with their seals and having the date aforesaid, one part of which indenture is now to the court here shown, the plaintiff did lease to the defendant the following property, to wit [describe it], for the term of years, at the annual rent of $, payable on the - day of in each year; and the defendant, among other things, did thereby covenant with the plaintiff to pay him the said rent, as it should become due; by virtue of which lease the defendant then and there took possession of said premises for the term aforesaid. And the plaintiff avers that afterwards, to wit, on, a large sum of money, to wit, S of the said rent, for years of the said term then elapsed, was and still is in arrears and unpaid; and so the said defendant has broken his said

Covenant.

It will thus be seen that the elements of a declaration in covenant are, the fact of making a contract under seal, the substance of that contract, and the breach of it.

(b) See 1 Swift's Dig. 574; 1 Chitty's Plead. 88; Steph. Plead. 18. (c) Declaration in Assumpsit. For that the defendant was indebted to the plaintiff in the sum of dollars, for divers goods, wares, and merchandise before that time sold and delivered by the plaintiff to the defendant at his request; and in consideration thereof the defendant then and there undertook and promised the plaintiff to pay him the said sum of money on request. Yet although often requested, he has not paid the same, or any part thereof, to the plaintiff, but refuses so to do.

From this specimen it will be seen that the elements of a declaration in assumpsit are, the fact of making a contract not under seal, the substance of that contract, and the breach of it.

I

Trespass. (a) We now come to the action of tort. The action of trespass is found in the register of writs, and was probably the first one reduced to form. The word trespass literally includes every kind of transgression or wrong; and hence the action on the case is often described as "trespass on the case." But when the word is used by itself, it designates this particular action. (It is the remedy made use of to recover damages for every violent or forcible injury either to the person or property. Force, therefore, is the gist or criterion of the action; and hence the injury is always described in these proceedings as committed vi el armis et contra pacem, with force and arms, and against the peace. To judge from this technical language, the action must have originated in those turbulent times, when armed force and violence were so common, that injuries not thus accompanied were scarcely noticed; but at present the degree of force made use of is of no consequence. If one assault, that is, make a motion to beat another, it is as much a forcible trespass as if there had been an actual battery. So if one merely walk upon another's unenclosed grounds, it is as much a forcible trespass, as if he had first broken down a fence to get in. Perhaps the legal idea of trespass will be best understood, if thus stated: Every injury to the person or property, which is the direct, immediate, and necessary effect of some act done by the defendant, however great or small the violence used, is viewed by the law as a forcible injury, and the proper remedy is trespass from which it follows, that no injury which is the result of negligence or omission, or which is merely the indirect consequence of any act not directly and necessarily injurious, or which is not done by the defendant himself, but by some one for whose acts he is responsible, can be redressed by this action. In fact, it will be found that forcible injuries to the person, and to real property, are almost the only ones for which trespass is the exclusive remedy: since for forcible injuries to personal property, some one or more of the other actions will nearly always lie concurrent with this. The following are specimens of the nice distinctions observed in relation to this action: If a log be put down in the gentlest manner upon my foot, the action is trespass; but if you dam up a watercourse so as to flood my land, trespass will not lie. If you row your boat directly against mine, the action is trespass; but if the wind or stream urge it against mine, trespass will not lie; and the remedy must be an action on the case. From this description it follows that the injuries redressed by trespass may be divided into three classes: First, direct injuries to the body, where the action is called trespass for an assault and battery; secondly, direct injuries to realty, where the action is called trespass quare clausum fregit, or trespass for

(a) See 1 Swift's Dig. 5, 27; 1 Chitty's Plead. 162; Case v. Mark, 2 Ohio, 169; Steph. Plead. 16; Hilliard on Torts; Henshaw v. Noble, 7 Ohio State, 226. The wrongful act, in order to be actionable, must be the proximate cause of the injury. The rule in jure causa proxima, non remota, spectatur, is well discussed in Marble v. City of Worcester, 4 Gray, 395.

breaking the close, because in legal contemplation every man's land is considered as enclosed; and thirdly, direct injuries to personalty, which may consist either in wrongfully taking and carrying it away, or directly injuring, without taking it, where the action is called trespass de bonis. (a)

Trover. (b) The action of trover, as we have seen, originated under the statute of Westminster. It takes its name from the French word trouver, signifying to find. It was originally designed as the remedy for recovering damages whenever personal property had been literally lost by the plaintiff and found and made use of by the defendant. It was one of the actions on the case; but it has passed into such extensive use, as to acquire, like assumpsit, a generic character. By a resort to fiction, its sphere has been so much enlarged in the process of time, that it now extends to all cases where the personal property of one person has been wrongfully converted by another to his own use. The word conversion,

in this action, has a technical signification. It implies either a wrongful taking of the goods of another; or a wrongful detention of what may be rightfully taken; or a wrongful using of what may have been neither wrongfully taken nor detained. Whenever one commits either of these three acts, with respect to personal property belonging to another, he is guilty of what the law calls a conversion of such property to his own use, and trover lies to recover damages. Conversion, as thus explained, is the gist or criterion of the action; although, for the sake of adhering to the original form, the property is still alleged, by way of fiction, to have been lost by the plaintiff, and found and converted by the defendant. (It follows, therefore, that trover is concurrent with trespass in all cases of wrongful taking. We shall also find that trover is concurrent with detinue and replevin, in all cases of wrongful detention. The following are specimens of the nice distinctions which prevail in regard to this action: If my trees have been cut down, but not carried away, trespass is the only remedy, because growing trees form part of the realty; but if they have been carried away, trover or trespass will lie concurrently, because, after being severed, they are personalty. If coals have

(a) Declaration in Trespass for Assault and Battery. For that the defendant, with force and arms, did assault, beat, bruise, and wound the plaintiff, and other wrongs to him then and there did, against the peace.

Declaration in Trespass quare clausum fregit. For that the defendant, with force and arms, broke and entered the close of the plaintiff, situate [describe the premises], and then and there cut down and destroyed a large number, to wit, one hundred oak trees, of great value, to wit, of the value of five hundred dollars; and other wrongs to the plaintiff the defendant then and there did against the peace.

Declaration in Trespass de bonis. For that the defendant, with force and arms, took and carried away the following goods and chattels of the plaintiff, to wit, ten bales of cotton, of great value, to wit, of the value of dollars, and other wrongs to the

plaintiff the defendant then and there did, against the peace.

From these examples it will be seen that the elements of a declaration in trespass are, the fact of committing a trespass, the fiction that it was done with force and arms and against the peace, and the particulars of the trespass.

(b) See 1 Swift's Dig. 533; 1 Chitty's Plead. 147; Steph. Plead. 18.

been dug from my pit, but not thrown out upon the surface, trespass is the only remedy; but if thrown out, trover or trespass will lie, for the same reason as before. (a)

Detinue. (b) The action of detinue is one of the original actions found in the register of writs. It is recognized in this State, but seldom resorted to, on account of the extension we have given to the action of replevin. It is the remedy originally provided for recovering specific personal property wrongfully detained from the rightful owner, together with damages for the detention. It is the only action, except replevin, adapted to this purpose; all the others being to recover damages alone. Besides the thing itself, damages may be recovered for the detention, and may include the value of the thing itself, when it cannot be had. No matter how the defendant came by the article, provided the plaintiff has a right to it; for the wrongful detention is the gist or criterion of the action. It follows from the very nature of the recovery, that the action can only be used where the detained article can be specifically identified. It also follows that detinue may be concurrent with trespass, trover, and replevin; for a wrongful detention is the sole gist of replevin, and is one of the gists of trover; and where goods have been wrongfully taken, the plaintiff may waive the taking, which would be the gist of trespass, and proceed for the detention only. (e)

Replevin. (d) The action of replevin, at common law, was the remedy for the recovery of specific personal property, wrongfully distrained, together with damages for the wrongful act. To distrain, is to seize upon property for payment of rent, taxes, and the like. The act of distraining as well as the thing taken, is called a distress and the object of the action was to try the legality of the distress. But the summary method of compelling payment by distress, is not practised here, except in collecting taxes and canal

(a) Declaration in Trover. For that the plaintiff was lawfully possessed, as of his own property, of certain goods and chattels, to wit [describe the goods generally, as ten chairs, ten horses], of great value, to wit, of the value of $- ; and afterwards,

on the same day, the plaintiff lost the same; and afterwards on the same day, the same came into the possession of the defendant by finding; yet the defendant, well knowing the same to belong to the plaintiff, but intending to injure and defraud him thereof, refused to deliver the same to the plaintiff, though often requested so to do, and then and there converted the same to his own use.

It will thus be seen that the elements of a declaration in trover are, the fact that the plaintiff owned the goods, the fiction that he lost, and the defendant found them, and the fact that the defendant converted them to his own use.

(b) See 1 Chitty's Plead. 117; Steph. Plead. 18.

(c) Declaration in Detinue. For that the defendant was possessed of certain goods and chattels of the plaintiff, to wit, [describe them], of great value, to wit, of the value of dollars, to be delivered to the plaintiff when the defendant should be thereto requested; yet though often requested, the defendant has not delivered the same or any part thereof to the plaintiff, but still wrongfully detains the same.

It will thus be seen that the elements of a declaration in detinue are, the fact that the plaintiff has a right to the possession of the goods, and that the defendant wrongfully detains them. The fiction of a bailment is commonly made use of, as in the above form, but is believed not to be essential.

(d) See 1 Swift's Dig. 522;1 Chitty's Plead. 157; Steph. Plead. 19; Curd v. Wunder, 5 Ohio State, 92; Bigelow v. Comegys, 5 id. 256.

tolls; and therefore, if the scope of the action had not been greatly enlarged, it would have been of little use. But by our statute, it is made a much more general remedy. It now lies whenever personal property is wrongfully detained from the owner; or in other words, a wrongful detention is now made the gist of replevin. The object of the action is twofold: to recover the specific property detained, and damages for the detention. In these respects, it coincides entirely with detinue; but in the mode of proceeding, it is entirely different from any other action, and forms an anomaly in our practice. (The plaintiff makes affidavit that the property belongs to him; that it is wrongfully detained by the defendant; and that it was not taken on any process against the plaintiff, nor for any debt or tax due the State; and thereupon the sheriff replevies the property: that is, he takes it out of the hands of the defendant, and delivers it to the plaintiff, upon his giving security to try his title, and abide the event of the suit; which security must be in double the value of the property, ascertained by appraisement, for which the statute provides. The suit then goes on to trial; and if the plaintiff fails in proving his title, he is answerable to the defendant for the value of the property replevied, and damages for taking it away, but the defendant. cannot recover back the specific goods. If the plaintiff succeeds, he already has the property, and of course only recovers damages for the previous detention, while in the hands of the defendant. From this view of replevin, as it exists here, you will observe that it may be concurrent with trespass, trover, and detinue, as before explained in speaking of detinue. But in general, the choice will lie between trover and replevin. If you wish to recover the specific chattels, and can find and identify them, you will bring replevin; but if you cannot identify them, or cannot come at them, or do not want them, you will bring trover for the damages you have sustained. (a)

Case. (b) The action on the case originated, as we have seen under the statute of Westminster 2d, and took its name from words used in that statute. It stands for a genus, of which assumpsit and trover were species. We sometimes say, "trespass on the case," but the single word "case" is sufficiently definite. Case is, then, the remedy provided for the recovery of damages for any injury to the person, property, health, reputation, or domestic comfort of individuals, not accompanied by force, either actual or constructive. Whenever the matter affected is not tangible, as reputation, so that force cannot be applied to it; or whenever the injury complained of is not immediate but consequential; or is

(a) Declaration in Replevin. For that the defendant was possessed of certain goods and chattels of the plaintiff, to wit [describe them], to be delivered to the plaintiff when the defendant should be thereto requested; yet the defendant, though often requested, would not deliver the same or any part thereof to the plaintiff, but wrongfully detained the same until replevied.

Thus the declaration in replevin is nearly identical with that in detinue. (b) See 1 Swift's Dig. 539; 1 Chitty's Plead. 133; Steph. Plead. 17.