Delevan v. Bates

By the cowrt, Green, J. The property in question having been unlawfully taken by Delevan, and sold to Town, who unjustly detained it from Bates, he was at liberty to prosecute his remedy against either of the wrong-doers, at his election. He elected to prosecute his writ of replevin against Town, and recovered his property, with the costs of suit. In that action, he was also entitled to recover his damages for the detention, (R. S. 1838, p. 525,) and whether he claimed such damages, or had them assessed or not, is entirely immaterial so far as this case is concerned, a waiver of damages being equivalent to a satisfaction. The first question presented is, whether the action should have been case or trespass ? There can be no doubt that if an action can be sustained upon the facts contained in the record, the form of action adopted is the proper one. The wrongful taking complained of, was a direct and immediate injury to the plaintiff, and imtil the recent statute authorized an action on the case for such an injury, that form of action could not be used in this class of cases.* But a more formidable question; and one about winch we entertain very serious doubts, is, whether Bates, having elected to prosecute .his action of replevin against Town, a vendee under-Delevan, and having, recovered his property in that action, can still maintain this action against Delevan? See Cowen & Hill’s notes to Phillip’s Evidence, 828, 978, and the cases there cited. This last question, not having been very clearly and distinctly presented by the record, nor fully discussed by the counsel, and the decision of it being of considerable importance as a precedent to govern this court hereafter in like cases, we shall not now undertake to decide; for whether the circuit court was right or not, in refusing to nonsuit the plaintiff, the judgment in this cause must be reversed upon another ground. [99] The only other question necessary to he considered is, whether ■ the circuit court erred in refusing to admit in -evidence the docket of the justice before whom the replevin suit was tried ? In actions of tort, every thing which may properly he considered by the jury in mitigation of damages, may be given in evidence under the general issue; for such matters cannot he’’ pleaded, and a [notice of them would he of no avail. Assuming, then, that this action may he maintained, the justice’s docket, showing the recovery of the property, with the costs of the suit, and a waiver or satisfaction of the damages to which the plaintiff therein ■was entitled, should have been admitted, as evidence in mitigation of the damages; and that evidence having been erroneously rejected, the judgment must be reversed, and a new trial awarded — the costs to abide the event. Judgment reversed and new triad awarded. Footnotes [*] R. S. 1846, p. 484, §30.