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or for damages, and if no return is made, the damages are recovered on an execution in the replevin suit. But the practice at common law which is followed in many states is to award a writ of return, and if this is not or cannot be executed, the defendant is left to his remedy on the bond. The penalty in this is double the value of the property, which is usually fixed by appraisal under statutes. This appraisal is, however, merely to guide the sheriff in fixing the amount of the bond, and is not conclusive on the defendant;74 but being made at the instance of the plaintiff is conclusive on him. The value which the defendant is entitled to recover is the value at the time of return ordered, and demand made, limited, of course, by the penalty of the bond. The measure of damages in a suit on the bond is, in the first place, the value of the goods and the damages and costs awarded in the replevin suit, and, secondly, interest on their value from the time the goods should have been returned, and interest on the damages, and costs from the time of judgment in the replevin suit.75 The judgment in the replevin suit is conclusive on the sureties to the bond.

3584. At common law, when the plaintiff in replevin was non-suited, he might sue out a new replevin, which necessarily superseded the execution of the judgment rendered on the non-suit in favor of the defendant pro retorno habendo, if it had not been enforced, or, if executed, the chattels were again taken under the new writ and restored to the plaintiff; and thus he might have suffered non pros of the second, third, or any number of suits of replevin, and so by neglecting to follow his suit he might have annoyed the plaintiff continually. To remedy this evil the statute of Westminster second, 13 Edw. I, c. 2, was passed. This statute allows a second writ to be issued upon security being given to the sheriff, “and if he that replevied make default again, or for any other cause return of the distress be awarded, being now twice replevied, the distress shall remain irreprevisable; but if the distress be taken of new and for a new cause,

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above said shall be observed in the same new distress.” The writ given by this statute is termed a writ of second deliverance. It is founded on the record of the former suit.76

The action of replevin is regulated by the statutes of the different states; these legislative acts contain special provisions so as to prevent the oppressions which it was the object of the statute of Westminster second to remedy.

74 Kafer v. Harlow, 5 All. Mass. 348. 75 Walls v. Johnson, 16 Ind. 374.

76 2 Inst. 341.

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CHAPTER XXV.

TRESPASS.

3585. Definition.
3586–3624. The injuries for which trespass lies.
3587, 3588. The nature of the injury.

3587. The general nature of the injury.

3588. The damage which has ensued.
3589–3593. The manner of committing the injury,

3590. By whom the injury may be committed.
3592. Injuries committed without process.

3593. Injuries committed under color of process.
3594–3597. Injuries to the person.

3595. The nature of the injury.

3596. The damages consequent on the injury.
3598-3606. Injuries to real property.

3599. The nature of the property affected.
3604. The plaintiff's right to the property injured.

3605. The nature of the injury.
3607–3618. Injuries to personal property.

3608. The nature of the thing affected.
3609_3613. The plaintiff's right to the thing injured.

3610. The rights of the general owner.
3611. The rights of the special owner.
3612. The rights of a bailee.
3613. The rights of a possessor without the consent of the owner,

3614. The nature of the injury.
3619-3624. Injuries to the relative rights.

3620. The nature of the plaintiff's right.
3622. The nature of the injury.

3623. The damage the plaintiff has sustained.
3625–3639. The pleadings.

3626. The declaration.
3633. Pleas in abatement.
3636. The general issue.
3637. Special pleas in bar.

3639. The replication.
3640-3651. The evidence.
3641-3647. Evidence for the plaintiff.

3642. Proof of the plaintiff's right.
3646. Proof that the injury was committed by the defendant.
3647. Proof of the damage.
3648. Evidence for the defence.
3652. The verdict and judgment.

3585. The action of trespass is instituted for the recovery of damages for such injurious acts, and such only, as have been committed with violence, vi et armis, to the person, property, or the relative rights of the plaintiff. It differs from trespass on the case in the fact that that lies for indirect and consequential injuries not committed vi et armis. Trover lies only when the defendant takes personal property and keeps it in his possession, and the bringing of the action waives any unlawfulness in the taking. Trespass will lie for an unlawful taking, but the unlawful keeping then forms no part of the injury, and the action does not lie for an unlawful detention merely.

Trespass to real estate consists in an injury to the possessor not amounting to an ouster or disseisin. Nuisance, like case, is an indirect and consequential injury not committed vi et armis. Waste is an injury to the reversion and not to the possession. Ejectment is also a remedy for one not in possession.

3586. The injuries for which trespass may be sustained will be considered with reference to the nature of the injury, to the manner of committing the injury, to injuries to the person, to injuries to real property, to personal property, and to the relative rights.

3587. Much difficulty exists in applying the rule which distinguishes the causes for which an action of trespass may be brought from those where case may be maintained.' To determine whether a wrong is a trespass or forcible injury, due regard must be had to the nature of the right affected. A wrong with force can be committed only against the absolute rights of personal liberty and security, and to those of property corporeal. Injuries to health and reputation and to property incorporeal cannot be redressed by an action of trespass, because the subject matter to which they relate exists in either case only in idea, and is not to be seen and handled, and therefore not subject to any injury by force.

Trespass may be maintained for an injury to the relative rights occasioned by force; as, for beating or wounding a wife or servant, by which the husband, master, or servant has sustained a loss, though the injury or loss of service were consequential and not immediate; as, for criminal conversation, or seducing away a wife or servant, or for debauching a female servant, for in these cases force is implied, because the wife and servant are considered incapable of giving their consent. In these cases, however, it is more correct to declare in case unless some other trespass has been committed at the same time by the defendant, as, an illegal entry into the plaintiff's house, and then it is advisable to bring trespass and join the two causes in the same action.

To enable the party injured to maintain trespass the wrong must have been the immediate consequence of the acts injurious to the plaintiff

, for if the damage sustained is a remote consequence of the act, the injury is to be redressed by an action on the case.?

An injurious effect or consequence alone is said to be immediate which is produced by the primary original cause, without the intervention of any secondary agency: thus, if Paul strike Peter, the injury is immediate, because nothing is interposed between the cause and its effects. But when a secondary cause intervenes, whether it is incited by its own free impulse or compelled to exert it by the influence of the first, the injury has been occasioned by secondary means. Where a man sets a trap in the highway which injures another is an example of the first kind; and the second is illustrated by the case where Peter sets in

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1 In many of those states which still retain the common law names of the forms of actions, the distinction between trespass on the case and trespass has been abolished, and it is enacted that a declaration good for either shall be good for both. This is the case in Maine, Delaware, Virginia, and West Virginia. Me. Rev. St. 1857, ch. 82, sec. 13; Del. Rev. Št. 1852; Va. Rev. Code, 1849. In other states the distinction is abolished, and either action is known only as an action of tort. Mass. Gen. St. 1859, ch. 129, sec. 1; Ga. Code, ed. of 1867, ? 3196. Under the New York practice, all actions of tort or contract are designated as civil actions. See before, 3031, note. Cotteral v. Cummins, 5 Serg. & R. Penn. 343: Winslow v. Beall, 6 Call, Va. 44.

motion an agent of destruction, a squib, which is cast toward Paul, who, in danger of being hurt, throws it toward James, and it bursts and does him an injury: Various other instances of secondary causes might be adduced; as, where a dam is put across a stream of a river, by means of which the water is forced to overflow its banks, and it injures the neighboring estate, or where the defendant shot the captain of a vessel just ready to sail whereby the voyage was delayed to the injury of the owners. In these cases the injury is so remote that trespass cannot be sustained, but case is the proper remedy for the consequential wrong.

But there is much difference between a secondary cause or agent and a mere instrument intervening between the original cause and the effect. If Peter thrusts Paul against James to the injury of the latter, the wrong is immediate, because the force which occasioned the inconvenience to his person is that of Peter himself, and Paul is the mere channel by which the vis impressa is communicated. This differs materially from the case of the throwing of the squib already mentioned; there Paul, though wholly innocent, is nevertheless the immediate cause or occasion effecting the mischief to James. For this reason, if an action of trespass be brought against him for the supposed injury, he must plead specially the matter in excuse, acknowledging that he himself committed the trespass, and showing that it was in voluntary and inevitable; whereas, in the case where Peter thrust Paul against James, if sued in trespass, Paul may plead the general issue, for he was the mere instrument in the hands of Peter.

3588. This action is brought for the recovery of damages; to maintain it, then, some injury must have been committed by the defendant against the plaintiff, for unless some temporal damage has been done, and has actually resulted, or is likely to ensue, no action lies; for example, in contemplation of law, a man's land extends upward to the skies; now suppose a man were to cross it in a balloon, he must break the ideal fence which the law has put around every man's land, and yet, as no damage would ensue from the act, no action of trespass could be maintained against the aeronaut, because he did no injury, and none could result from his act; but if an injury has been done, the degree is wholly immaterial, nor will distinct proof be required upon every occasion that an inconvenience has been sustained, because, in many instances, it is impossible to adduce any evidence of the injury. When one man strikes another it is impossible to say what pain or inconvenience the latter has suffered, and, to insure his safety, the law presumes an inconvenience has resulted to him, and a detriment has followed.5

3 Scott v. Shepherd, 3 Wils. 403. See Beckwith v. Shordike, 4 Burr, 2092; Davis v. Saunders, 2 Chitt. 639.

* Adams v. Hemmenway, 1 Mass. 145. It is held in Maine that the plaintiff can maintain trespass for an injury to his hay, caused by the overflow of water from a dam built by defendant, but this depends on the statutes. Reynolds v. Chandler River Co., 43 Me. 513.

5 Bullock v. Babcock, 3 Wend. N. Y. 391 ; United States v. Ortega, 4 Wash. C. C. 534; Dinkins v. Debruhl, 2 Nott & M'C. So. C. 85. It is difficult to conceive of a case where the infringement of a right does not cause at least nominal damages, and this often cited case of the balloon is almost a solitary instance. But if it is correct to say that no action lies for such an act, the correct explanation seems to be that the ownership which the land owner has to the air is merely the right to occupy it by building, and when so occupied to be protected in its use; but, until such occupation, the public have a free right of navigation in the air, paying a due regard to the public safety. Recently, in England, a land owner sought an injunction against a balloon, which was frequently sent up from an adjoining lot, to which it remained attached by a rope, but passed or remained over the plaintiff's land, and by the great weight of the car and contents threatened damage to the plaintiff. The decision was in favor of the injunction, but as the case is not reported it is impossible to say whether the acts were held to constitute a trespass or a nuisance; the latter is the correct view, according to the rule given above.

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When this detriment or injury resulted necessarily from the acts of the defendant, the damages sustained by the plaintiff are termed general damages, and it is not requisite that he should prove what loss he has sustained, for the proof of the injurious act is sufficient, and if none greater are proved, the law will in such cases give nominal damages. But in some cases the plaintiff actually suffers loss which is not necessarily a consequence of the act complained of, and therefore not implied by law; damages of this kind are denominated special damages. These must be strictly proved.

The detriment or inconvenience sustained must be the necessary consequence of the defendant's misconduct, and not the effect of the negligence of the plaintiff, or produced by the wrongful act of another.

There may be not only acts or wrongs which are evidence of general or special damages, but also which are matters in aggravation of damages, which indicate the animus or intention by which the defendant was influenced at the time of committing the trespass; these may be shown in order to aggravate the damages.

In some cases the injury committed is to the feelings of the plaintiff, when in fact he has received no temporal or pecuniary loss or damage; here the law, being founded on general principles, can give no remedy; as, where the defendant seduced the daughter of the plaintiff, who was not his servant. But although such injury is not of itself sufficient to support an action, yet, if the defendant entered the house of the plaintiff to commit the injury, an action may be brought for the wrongful entry, and the plaintiff may allege the seduction as matter of aggravation, and in this way recover damages for the injury done to his feelings. In this case, the plaintiff does in fact, though not in

? law, recover for the seduction of his daughter.

But although a detriment has occurred, yet no damage or injury has been sustained by the plaintiff, when the act of the defendant can be justified or excused; as, where the defendant acted in obedience to an authority in law or in fact, or in defence of his absolute or relative rights. And when an injury has taken place which could neither be justified nor excused, it may still be subject to a mitigation of damages; as, where a reasonable cause of suspicion that the plaintiff had committed a felony exists, it may be shown, in mitigation of damages, in an action for false imprisonment, for when a party is placed under suspicious circumstances, though sometimes it may be only his misfortune, yet it is generally his fault, and the law very properly casts a part, at least, of the ill consequences upon himself

. The defendant, in an action for the seduction of a wife or daughter, may, in mitigation of damages, give evidence of facts which show that the consequence resulted in part from the improper, negligent, or imprudent conduct of the plaintiff himself.9

These matters in aggravation or mitigation of damages are facts and circumstances which may be proved to increase or diminish the extent of the injury itself; the tort remains, and the circumstances thus proved ought to be those only which belong to the act complained of. The plaintiff is entitled to receive, and the defendant is liable to pay, damages only to the extent of the injury.10

3589. The injury for which an action of trespass will lie may be committed by the defendant himself, by one unler his command, or by his cattle; without process, or under color of legal proceedings.

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* Flower v. Adam, 2 Taunt. 314. See Vicars v. Wilcox, 8 East, 1; Morris v. Langdale, 2 Bos, & P. 284. See Stephen, Pl. 257.

8 Chinn v. Morris, Ry. & M. 424. Buller, Nisi P. 27, 296; Selwyn, Nisi P. 25; 2 Greenleaf, Ev. & 56. 10 2 Greenleaf, Ev. & 267. See Bridge v. Grand Junction Railway Co., 3 Mees. & W. Exch. 244; New Haven Steamboat Co. v. Vanderbilt, 16 Conn. 420.

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