CHAPTER XX.

THE RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE RECOVERY OF SPECIFIC PERSONAL PROPERTY; THE COMMON LAW ACTIONS OF DETINUE AND REPLEVIN.

Detinue Nature of the proceeding of Replevin-In this action damages can be recovered by both parties-Where the defendant succeeds, he is entitled to interest upon the value of the property during its detention-How the value is to be estimated-Damages recoverable by the plaintiff.

Two forms of action are prescribed by the common law for the recovery of specific personal property,-detinue and replevin; the first being generally used where there was a tortious detention only, the latter where there was a tortious taking. And in detinue, as in debt, no damages were generally given for the thing itself, that being recoverable in specie; but merely for its detention. If, however, the property was not finally returned, then damages might be given for its value. (v) "The action of detinue," says the Supreme Court of Tennessee, "is for the thing detained and damages for detention; the value of the property is ascertained by the jury; and the judgment is in the alternative for the sum so found, as the value in case the thing recovered cannot be had." (w) The question on the issue of non detinet is whether the chattel be detained, and if so, what is its value and what the damages for its detention; and so the ordinary modern form of verdict in detinue finds the value of the property and damages for its detention.

But as has been said, if for any reason the property cannot be

(v) Sayer on Damages, ch. xiv., 69 and

(w) Wade v. Dolby, 8 Humphreys, 406.

70.

returned, the plaintiff is entitled to its full value. So in the early cases, where we often find detinue brought for charters or [498] title deeds, if the charters were destroyed or made way

with, (eloigned) the plaintiff recovered all in damages. And so in a recent case where detinue was brought for stock certificates, which had been returned pendente lite, it was held that the jury might confine themselves to an assessment of damages. (a) In this case the property was demanded; the stock was worth £3 58.; when it was delivered it had fallen to £1, and the plaintiff was held entitled to recover the difference. A plaintiff in detinue, whose title to the property sued for is legally divested before the trial of the cause, can recover nothing beyond his damages for its detention to the time when his title was divested, and the costs of suit. (y)

Replevin. The action of detinue has, however, fallen into great disuse, and in some of the States of the Union it is abolished by statute. (2) I proceed, therefore, to the action of replevin. And this action, also, has been so much altered and modified by special statutes, that it will only be proper here to treat of it very succinctly. As to the character of this action, it is sufficient to state, generally, that the plaintiff by his writ seizes the specific property, and at the same time gives a bond with proper sureties, conditioned to return it, or its value, provided it shall finally appear that he has no right of action. The bond, however, is only a cumulative security to the defendant; and if the plaintiff fails to establish his right, the court may proceed in the action itself to award damages against him, as the result of a claim declared to be unfounded, for the value of the property taken by him.

The nature of the proceeding is well and briefly stated by Parsons, C. J. :—

"The plaintiff having by the service of the writ obtained the possession of the goods replevied, prosecutes it to obtain judgment for damages and costs against the defendant for the caption and detention. These are the objects of his suit. The defendant not only resists the plaintiff's claim, but he also complains of an injury arising from the service of the writ. He demands back the chattels with damages, occasioned by the replevin, and his costs in the defense

* * * The distinction between replevin and other actions in which [499] the plaintiff demands a debt or damages or lands, is very clear, because the magnitude of the debt or damages, and the quantity of the land, is

(x) Williams v. Archer, 5 Mann. Gr. & Sc., 318. See Archer v. Williams, 2 Car. & Kir., 25.

(y) Cole v. Conolly, 16 Ala., 271. (z) So in New York, by Revised Statutes, vol. ii., 553. ·

involved in the plaintiff's original demand, as well as his title to recover any thing. But in replevin, the demand of the defendant is founded on the legal process sued and prosecuted by the plaintiff. (a)

The jury must find the value of the property; and in Arkansas, in replevin for slaves where the property has not been replevied and delivered to the plaintiff, and the verdict is in his favor, the jury should find the separate value of each slave, or a venire de novo will be awarded. (b)

In this action the plaintiff had damages at common law; and by the statute of Gloucester, costs, as a consequence of such damage; but the avowant or defendant in replevin had no costs, although in many cases where an avowry or conusance was made, and a return prayed, the defendant was an actor. (c) In consequence of this hardship two statutes were passed (d) giving damage and costs to the defendant as the plaintiff would have had at common law. (e) These statutes have, I believe, been generally re-enacted in this country. By virtue of these enactments, the general rule, where the defendant succeeds and has judgment in his favor, for a return, is that he is also entitled to damages; and the decrease in value of the goods since the time of the replevin, with interest on their entire value, forms the proper measure of his damages. (f) So the defendant is entitled to damages for deterioration in the value of the goods from the time of the replevin, although it be not pretended that the decrease in value be attributable in any degree to the act or default of the plaintiff. In a case in New York, it was decided in a suit on the replevin bond, that the non-return of the property was excused by its inevitable destruction before judgment. (g) This decision was based on the old rule that if the condition of a bond become impossible by the act of God, the penalty is saved. (h) But it seems contrary to principle, and has been [500] expressly disapproved of. () As between parties to a contract, it seems very reasonable that all interested in its execution

(a) Bruce v. Learned, 4 Mass., 614, 617, and 618.

(b) Noland v. Leech, 5 English, 504. (c) Bacon Abr., Costs, F., of Costs in Replevin.

(d) 7 Hen. VIII., cap. 4; and 21 Hen. VIII., cap. 19.

(e) James v. Tutney, Cro. Car., 383, Case 532. Rowley v. Gibbs, 14 Johns.

Rep., 385. Caldwell v. West, 1 Zabriskie, 411.

(f) Rowley v. Gibbs, 14 J. R., 385. Brizsee v. Maybee, 21 Wend., 144.

(g) Carpenter v. Stevens, 12 Wend.,

589.

(h) Black. Com., B. 2, Ch. 20. (i) Suydam v. Jenkins, 3 Sandford Sup. Ct. R., 614.

should bow to the superior power which renders its performance impossible. But it cannot be tolerated that a wrong-doer should be excused by any subsequent accident. Nor do the analogies of the law justify any such decision. In trover or trespass for goods after the conversion or trespass was complete, the party in fault would certainly never be admitted to excuse himself by alleging that the property had perished in his hands without his fault. The court appears rather to have looked to the technical form of the action than to the substantial justice of the case.

In an action of debt on a replevin bond, in Massachusetts, the original plaintiffs having been defeated, but refusing to restore the goods on the writ of restitution, the question was considered, whether the value of the goods should be computed-at the valuation in the replevin bond; the actual value of the property at the time of the service of the replevin writ; at the time of the verdict rendered; or at the time of the demand made under the writ o restitution it seems from the report that the property at the time was still in the possession of the defendant; and the latter was held the true rule. ()

In the same State, also, interest is allowed the defendant on the value. (k) But where the goods attached were subject to duties, and the plaintiff paid them, it was held in an action on the replevin bond, that the interest should be computed only on the difference between the amount so paid, and the valuation in the writ of replevin. (7) This is a correct application of the original doctrine of recoupment. It appears here, that the valuation in the original writ was adopted, instead of the actual value of the goods; and it has been also so held in England, on the sound principle, that the plaintiff in the replevin suit is bound by the estimate of the property made by himself. (m)

It has been further intimated, in the same State, that if [501] special damage was shown to have been suffered by the defendant, it may be allowed. (n)

These damages are, it will be observed, only damages for the

(j) Swift v. Barnes, 16 Pick., 194. See this case commented on in Suydam v. Jenkins, 8 Sandford S. C. R., 614. In Maine, see Howe v. Handley, 28 Maine R., 241.

(k) Wood v. Braynard, 9 Pick., 322.

(1) Huggeford v. Ford, 11 Pick., 223. See, also, Mattoon v. Pearce, 12 Mass., 406.

(m) Middleton v. Bryan, 3 Maule & Sel., 155.

(n) Barnes v. Bartlett, 15 Pick., 71.

detention of the property, (1) and apply to cases where the property has not altered in value, or has deteriorated. But where the property has risen during the pendency of the proceedings, another principle is applied. Under the judgment for a return, the defendant is entitled to recover the value of the property; (2) and here the same question arises, although it is sometimes presented in a distinct suit on the replevin bond, which we havė already examined in the action of trover, as to the time when the value should be computed; whether at the time of the replevin, or the highest price down to the time of the trial. It has been suggested in New York, (o) that the former period is to furnish the rule. But this must, I think, be taken with many modifications, and, as we have already seen, has been distinctly disapproved of in the same State. (p)

So this rule in regard to the value of the property is also modified where the defendant has only a special property in it; (3) for if the value exceed his demand, and he takes a verdict for the entire value, he will be liable to the plaintiff for the excess. (g) And on the same principle, if property be replevied from a sheriff holding it under execution, and who has no other interest in it than that of the creditor whom he represents, if the issue be found for the defendant and the value of the property be greater than the amount of the execution, the rule of damages is the amount of the execution with interest and the costs thereon; but if the value of the property be less than the execution, then the rule of damages is the full value of the property. (7) It will be observed that the analogy of trover is here followed; for in that

(0) Brizsee v. Maybee, 21 Wend., 144. (p) Suydam v. Jenkins, 3 Sandf. 614.

(9) Serugham v. Carter, 12 Wend., 131. (r) Jennings v. Johnson, 17 Ohio, 154.

(1) Where the chattel is not returned, the damages must cover its value as well as the injury done by the detention. Frazer v. Fredericks, 4 Zabr. (N. J.), 162. (2) Lutes v. Alpaugh, 3 Zabr. (N. J.), 165.

(3) In Indiana, under the provisions of 2 Revised Statutes, 124 and 374,—which enact that, in an action of replevin, where the property has been delivered to the plaintiff, judgment for defendant may be for a return of the property, or its value if a return cannot be had, and damages for the taking and withholding,—it is held that the amount of damage in such case depends on the value of defendant's interest in the property; whether he holds as absolute owner, or bailee, &a Noble v. Eppersly, 6 Ind. R., 468. So is the law in New York, under similar provisions of the Code of Procedure. Seaman v. Luce, 23 Barb., 240; Fitzhugh v. Wiman, 5 Seld. 559.