§ 275. The action of debt lies for a statutory penalty because the sum demanded is certain, but though in form. ex contractu, it is founded in fact upon a tort. The necessity of establishing a joint liability in such cases does not, therefore, exist; it is sufficient if the liability of any of the defendants be shown. Judgment may be entered against them and in favor of the others, whose complicity in the offense, for which the penalty is prescribed, is not proved, precisely as though the action were in form as well as in substance ex contractu. Chaffee v. United States, 18 Wall., 538.

§ 276. By the common law an action of debt is the general remedy for the recovery of all sums certain, whether the legal liability arise from contract or be created by a statute. And the remedy as well lies for the government itself as for a citizen. And where the debt arises by statute, an action or information of debt is the appropriate remedy, unless a different remedy be prescribed by the statute. United States v. Lyman, 1 Mason, 498; Bullard v. Bell, 1 Mason, 243.

§ 277. Debt will lie to recover penalties and forfeitures under a statute, where it is provided that such penalties and forfeitures shall be "sued for and recovered." Stockwell v. United States, 13 Wall., 543.

§ 278. All legal liabilities created by statute, which give to one person a right to receive a determinate sum of money from another, the right being founded entirely on the statute, are such liabilities as are a proper foundation for an action of debt. Bullard v. Bell, 1 Mason, 261.

§ 279. Where an act provides that "all penalties imposed by this act may be recovered in any action of debt by any person who will sue therefor," this does not preclude the United States from suing also in an action of debt. United States v. Bougher. 6 McL., 277.

§ 280. In all cases where a statute forbids an act and imposes a penalty, but provides no form of procedure, the government may proceed by indictment or by an action of debt. United States v. Bougher, 6 McL., 280. Where a statute gives a fixed and certain penalty, and no particular remedy is prescribed for enforcing it, an action of debt may be brought to recover it. In re Rosey, 6 Ben., 511. Where pecuniary penalties are affixed by statute to an act or neglect, and no imprisonment is provided for, and no reason exists to suppose that a mere punishment is intended, and no specific action is pointed out by statute, debt is the proper action, though the penalty is fixed between two amounts named. United States v. Elliot,* 8 Reporter, 675..

$281. On bills and notes.- Debt will lie on a note against the maker. Gardner v. Lindo, 1 Cr. C. C., 78. But it is held that debt will not lie on a promissory note in Maryland. Lindo v. Gardner,* 1 Cr., 344. It lies on a note against an executor. Childress v. Emory, 8 Wheat., 672. Also upon a bill of exchange by an indorsee against the acceptor, when it is expressed to be for value received. In such case the undertaking of the acceptor is not collateral, but original. Raborg v. Peyton, 2 Wheat., 389. The indorsee of an inland bill of exchange may sue the acceptor in debt. Vowell v. Alexander, 1 Cr. C. C., 33. See § 204.

§ 282. Debt is maintainable by the indorsee against the drawer of a bill, when the plaintiff strikes out the intermediate indorsements. Horne v. Semple, 3 McL., 150.

$283. It seems that an action of debt will lie by the payee or indorser of a bill of exchange, against the acceptor, when it is expressed to be for value received. Frazer v. Carpenter, 2 McL., 237.

§ 284. For revenue.- Debt will lie to recover unpaid duties, and also to recover a penalty for the importation without payment of duties. Stockwell v. United States, 3 Cliff., 290. See § 192.

§ 285. In respect to the duties payable upon the importation of goods, the usual proceeding, where no specialty has been taken as a security, is an information of debt. United States v. Lyman, 1 Mason, 498.

§ 286. Debt is a proper form of action for the United States to bring to recover moneys due under the internal revenue laws. Dollar Savings Bank v. United States, 19 Wall., 237. $287. An action of debt will not lie to recover statutory penalties for violation of revenue laws under sec. 4, ch. 201, 14 Stat. 179. The act contemplates a criminal and not a civil proceeding. United States v. Claflin, 7 Otto, 547.

§ 288. An action of debt lies by the government where an erroneous assessment has been made by government officials of distillery taxes, to recover the excess of the taxes which were assessable over the amount assessed. United States v. Halloran, 14 Blatch., 4.

$289. An action of debt lies in favor of the United States against an importer for duties due on goods imported. Taking a bond at the custom house to secure such payment does not operate as an extinguishment of the debt, but is mere collateral security. United States v. Lyman, 1 Mason, 498. 81

VOL. I-6

3

§ 290. Boats and vessels.-- A proceeding under § 3 of the act of July 4, 1864, regulating the carriage of passengers on steamships, must be by action of debt, and not a libel in rem. The Nashville, 4 Biss, 188.

§ 291. Debt, and not a libel in rem, is the proper proceeding by the government for the recovery of the statutory penalty for carrying improper and dangerous freight on passenger steamers. United States v. The C. B. Church, 1 Woods, 278.

§ 292. An action of debt is the proper remedy by the government to recover a penalty for being knowingly engaged in foreign trade in violation of the embargo. United States v. Allen,* 4 Day, 475.

§ 293. Debt is the proper remedy against the owner of a vessel for tonnage and light moneys remaining unpaid by him, whether so remaining by mistake, accident or fraud. United States v. Hathaway, 3 Mason, 325.

§ 294. It seems that an action of debt in the name of the consul would be the proper remedy against a ship owner for failing to deposit his ship's register with the United States consul on his arrival in a foreign port. Parsons v. Hunter, 2 Suinn., 421.

§ 295. On a bond payable by instalments, debt cannot be sustained till all the instalments are due. Fontaine v. Aresta, 2 McL., 128; contra, Nailor v. Kearney, 1 Cr. C. C., 112. But if the payment is secured by a penalty, debt may be brought. Fontaine v. Aresta, 2 McL., 128. See § 75.

§ 296. Against a bank.- Where it is held by the highest court of the state that an action of debt will lie for a demand otherwise of equitable cognizance, the like form of action may be brought in the federal courts. It is accordingly held that debt would lie to ascertain the proportion of liability of a stockholder in a bank, the amount being a matter of mere calculation. Mills v. Scott, 9 Otto, 29.

§ 297. Where the charter of a bank makes the stockholders liable on the dishonored bills of the bank, debt will lie. Bullard v. Bell, 1 Mason, 257.

§ 298. Debt is the proper form of action against the directors of a bank under a statute allowing proceedings against them personally for the debts of the bank. Falconer v. Campbell, 2 McL., 210.

$299. On bail bond.- An action of debt upon a recognizance of bail is an original action, and may be brought in another court from that in which the original proceedings were had. Davis v. Packard, 7 Pet., 285.

§ 300. Recovery. In an action of debt on a policy of insurance, where the sum demanded in the writ is in excess of that established to be due, plaintiff may claim the amount due by entering a remittitur as to the excess demanded. Hughes v. Union Ins. Co., 8 Wheat., 309. In debt, though the count contains no claim of damages, the ad damnum clause in the writ is sufficient. Childress v. Emory, 8 Wheat., 671.

§ 301. Against an executor.- An action of debt in detinet only is proper against an executor, unless he has made himself personally liable, as by a devastavit. Childress v. Emory, 8 Wheat., 671.

§ 302. Miscellaneous.- Plaintiff delivered a quantity of cotton to defendant to be ginned, and the defendant refused to return the cotton on demand. Held, that debt would lie for the value of the cotton. Collins v. Johnson,* Hemp., 279.

§ 303. An action of debt will not lie against an administrator in one of the United States, on a judgment obtained against a different adminstrator of the same intestate, appointed under authority of another, for in contemplation of law there is no privity between them. Stacy v. Thrasher, 6 How., 58.

§ 304. An action of debt is maintainable for the statutory penalty for harboring fugitive slaves, on mere proof of such harboring, without showing damages. Oliver v. Weakley, ? Wall. Jr., 326.

§ 305. A declaration in debt must claim a precise sum; but the demand of one sum does not prevent a recovery of a smaller sum, where it is diminished by extrinsic circumstances. United States v. Colt, Pet. C. C., 154; Bullard v. Bell, 1 Mason, 254.

§ 306. Though a declaration in debt which states the amount in foreign money is bad, yet if the value is proved, the fault is cured. Brown v. Barry, 3 Dal., 369. The action of debt is founded on a contract, the action of assumpsit on a promise. In debt, the word "promised" is bad; "agreed" is proper. Metcalf v. Robinson, 2 McL., 364. The declaration in debt on a bond should allege that the amount due is unpaid. Jolley v. Plant,* 1 MacArth., 93. See § 482.

XI. DETINUE.

§ 307. Nature of the action.- The action of detinue is often brought for a tort, and in such a case the plaintiff is not held to the literal meaning of the words he uses any more than he is in trover and ejectment, and is not obliged to prove them as laid. If it is clear that the ac

tion is founded on a tortious seizure, the action will not be held to be one in contract, because, by the laws of pleading, the plaintiff has been compelled to use a fictitious form. Elgee v. Lovell,* Woolw., 112.

§ 308. Detinue is an action in form ex contractu, and not ex delicto. Maynadier v. Duff,* 4 Cr. C. C., 7.

§ 309. Restoring property.— In detinue the defendant may discharge the judgment rendered against him for the value of the property by restoring the property. Mirick v. Hemphill, Hemp., 180.

§ 310. Lies, when.- Detinue will lie for a slave, though the defendant obtains possession thereof unlawfully. The tort may be waived. Bernard v. Herbert,* 3 Cr. C. C., 346.

§ 311. Detinue will lie against one who has quitted the possession of personal property prior to the commencement of the suit, but eviction before suit, or a return of the property to the plaintiff before suit, is a bar. Woodruff v. Bentley,* 1 Hemp., 112.

XII. REPLEVIN.

1. In General.

SUMMARY-In general, §§ 312-317; lies, when, §§ 312, 313; lies for timber severed from realty, $314; property seized under revenue laws, § 315.- Judgment for defendant, measure of damages, § 316.— Good plea in bar, § 317.

§ 312. All that is necessary to support the action of replevin is property in the plaintiff, either general or special, and a wrongful taking from the plaintiff's possession, either actual or constructive. The statement by Blackstone, that it lies only for goods taken by distress, is not supported by authority. It will lie to recover goods seized by an officer under an execution against a third person. Williamson v. Ringgold, §§ 318-328.

$313. At common law a writ of replevin never lies unless there has been a tortious taking, either originally or by construction of law, by some act which makes the party a trespasser ab initio; where the possession is rightful, detinue or trover is the proper remedy. Non cepit is a good defense where there has not been an actual taking. Meany v. Head, §§ 329–331.. See § 344.

§ 314. A party may, on the strength of his title to the realty, maintain an action for a chattel which has become such by a wrongful severance from the premises. It is accordingly held that where a party has contracted to sell the land, and the vendee is in possession under a restricted license to cut timber, if the latter cuts timber contrary to the agreement, and manufactures it into shingles, replevin will lie to recover the property in its altered form; and the action will lie against one who purchases the timber from the vendee. Nelson v. Graff, § 332-334. See $$ 358, 360.

$315. A statute (Act of July 13, 1866), which provides that property seized under a revenue law shall be irrepleviable, applies in cases where the property of one person is seized under process against another. Treat v. Staples, SS 335-340. See § 357.

§ 316. Where judgment is entered for defendant in replevin, he is entitled only to nominal damages where he shows no right to the property. Ibid.

§ 317. A plea, that the goods are not the property of the plaintiff, though not the authorized form, is a good plea in bar. Dermott v. Wallach, §§ 341–343.

[NOTES.-See §§ 344-399.]

WILLIAMSON v. RINGGOLD.

(Circuit Court for the District of Columbia: 4 Cranch C. C., 39-67. 1830.)

Opinion by CRANCH, C. J.

STATEMENT OF FACTS.-This is a replevin for the plaintiff's goods, taken on a fieri facias, against John Wells, Jr., at the suit of Thomas Carberry, issued out of this court. Mr. Morfit, for the defendant, has moved the court for a return of the goods under the act of assembly of Maryland, 1785, ch. 80, § 14 (and also for a venditioni exponas), because the goods were, as it is said, in the custody of the law, and therefore could not lawfully be replevied, whether the plaintiff in replevin was, or was not, the owner of the goods at the time of

the taking, and whether they were taken by the marshal out of the actual possession of the plaintiff in replevin, or out of the actual possession of Wells, the debtor in the execution. It is understood to be admitted in argument, that the goods were the property of the plaintiff in replevin, at the time of the taking by the defendant, and that the defendant took them to satisfy the execution against Wells. It is not stated whether they ever had been in the possession of the plaintiff, nor whether they were taken from the actual possession of Wells, or from the actual or constructive possession of the plaintiff.

$318. Return of goods to defendant under statute of Maryland.

If the goods never had been in the possession of the plaintiff, they must be returned to the defendant under the act of assembly, 1785, ch. 8, § 14, upon a retorno habendo bond being given by the defendant; for that act strongly implies that the return to the defendant is to be ordered of course, unless the defendant obtained the possession "forcibly or fraudulently;" or that the possession having been first in the plaintiff, "was got, or retained by the defendant, without proper authority or right derived from the plaintiff;" in which case the court is authorized "to refuse to order a return to the defendant, until a judgment is given in the action." But, upon such return, when ordered, the defendant must give bond and security to restore the goods to the plaintiff, if such should be the judgment of the court. If, therefore, the plaintiff cannot show that the defendant took the goods out of his actual or constructive possession, the return must be ordered, of course, to the defendant. Cullum v. Bevans, 6 Har. & Johns., 471.

§ 319. Replevin will lie where plaintiff's goods are wrongfully seized by an officer under an execution against a third person.

The motion for a return, upon the ground that goods in the custody of the law are not to be replevied, is, in effect, a motion to quash the replevin; for if the return should be ordered, it must be without bond; and such an order would be of course, if the plaintiff in replevin were the debtor in the writ of fieri facias; for the law, in that respect, is well settled in this country as well as in England. But it is not well settled, either there or here, that a man cannot maintain replevin for his goods taken out of his actual or constructive possession by an officer, to satisfy an execution against a third person. In some of the states it is well settled that he can. But in Maryland, the court of appeals has lately delivered a solemn opinion that he cannot, in the case of Cromwell v. Owens, 7 Har. & Johns., 60, 61.

§ 320. The rule as to goods in the custody of the law.

In England, it will be found that every case adduced in support of the rule, that replevin will not lie for goods in the custody of the law, are cases where the plaintiff in replevin was the debtor himself. It is said to be a rule founded upon the policy of the law; and the reason given by Gilbert on Replevins, 161, in the very passage relied upon in support of the rule, is, that "it would be troubling the execution awarded, if the party on whom the money was to be levied should fetch back the goods by a replevin; and, therefore, they construe such endeavors to be a contempt of their jurisdiction; and upon that account commit the offender." Goods seized and held by a trespasser cannot, surely, be said to be in custody of the law, except as against the trespasser himself, when they are seized in execution. The policy of the law refuses him the right to question the validity of the judgment, or to deny his interest in the property, by any means that would defeat or delay the execution; but it does not refuse a third person the means of protecting his rights from illegal violation.

8321. What necessary to support replevin.

The general rule is, that replevin will lie wherever trespass will lie for taking the plaintiff's goods. There is, however, this difference between trespass and replevin, that trespass will lie upon possession alone; but replevin requires property in the plaintiff. All that is necessary to support the action is property in the plaintiff, either general or special, and a wrongful taking from the plaintiff's possession, either actual or constructive. The idea suggested by Blackstone, and repeated by several other elementary writers, that replevin will only lie for goods taken by distress, has no foundation. I have not found it supported by a single adjudged case. On the contrary, the cases are abundant, from the time of the year books to the present moment, in which replevin has been supported for goods not taken by distress. Blackstone (3 Com., 145, b.) says, “The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves, so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin." "This obtains only in one instance of an unlawful taking, that of a wrongful distress." For this assertion, he cites no authority whatever; and it is believed none can be found.

$322. Authorities reviewed.

Baron Gilbert, whose treatise upon the law of replevins was published some years before Blackstone's Commentaries, defines the writ of replevin thus: "A replevin is a justicial writ to the sheriff, complaining of an unjust taking and detention of goods or chattels, commanding the sheriff to deliver back the same to the owner, upon security given to make out the injustice of such taking, or else to return the goods and chattels." Gilbert on Replevins, 58. Sellon, vol. 2, p. 153, following Blackstone, says, "Replevin is a remedy grounded upon a distress; for goods are only replevisable when they have been taken by way of distress." But he cites no authority except Co. Lit., 145, which gives no countenance to such a doctrine. It only shows that replevin is the proper remedy in cases of distress for rent; but not that replevin will not lie for goods not distrained. On the contrary, Lord Coke says that when the defendant claims property, although upon the plaint the sheriff cannot try the question, "yet the plaintiff may have a writ de proprietate probanda, directed to the sheriff, to try the property; and if, thereupon, it be found for the plaintiff, then the sheriff to make deliverance (for so be the words of the writ); and if for the defendant, he can no further proceed. But that is but an inquest of office; and, therefore, if thereby it be found against the plaintiff, yet he may have a writ of replevy to the sheriff; and if he return the claim of property, etc., yet it shall proceed in the court of common pleas, where the property shall be put in issue and finally tried." This passage shows that replevin will lie to try the title to goods which have been wrongfully taken from the possession of the plaintiff. In the action of replevin, neither the writ nor the declaration says anything of the goods being taken as a distress. The injury complained of is, that the defendant took and unjustly detains the plaintiff's goods, not that he took them for any particular purpose.

In the case of Shannon v. Shannon, 1 Sch. &. Lefroy, 327, Lord Redesdale says, "Mr. Justice Blackstone's definition of the action of replevin is certainly too narrow. Many old authorities will be found (in the books) of replevin being brought where there was no distress." "It is an action founded on a taking, and the right which the party from whom the goods were taken has to