Wright v. Ross

2 Greene 266

• Court: Supreme Court of Iowa
• Decided: June 15, 1849
• Status: Published

Opinion

Opinion by

GreeNE, J.

W. G. Boss commenced an action of detinue before a justice of tbe peace, to recover a pistol from G. M. Wright. Plaintiff recovered judgment, and tbe defendant took tbe case to tbe district court by writ of certiorari, where tbe judgment of tbe justice was affirmed. IJpon tbe trial of tbe certiora/ri, tbe following questions were raised and decided in tbe affirmative': 1. Is a pistol sucb property as may be sued for, in an action of detinue? 2. Is tbe description of tbe property sufficiently specific? 3. Was May a competent witness for Boss? It is now contended, that these propositions should have been decided in tbe negative,'and that tbe judgment of the justice should have been reversed. As these points were respectively urged, in tbe argument, we will give to each a brief notice.

1. Is a.pistol sucb property as may be sued for in an action of detinue ? This action has nearly'fallen into disuse, and has given place to tbe more usual actions of re-plevin or trover. Still it is not forbidden by statute, nor is it altogether obsolete, and may therefore be maintained by our courts where properly instituted. Detinue can only be maintained for tbe recovery of a personal chattel in specie. Stephen on PI. 16. The thing sought to be recovered then must be capable of being distinguished from all others. A horse, a cow, a slave, &c., are objects that were commonly recovered in this action. But it has been held, that the action will not lie for a bushel of grain, nor for any article that cannot in its nature be distinguished from others. Oo. Litt. 286, b; 3 Bk. Com. 152. The goods sought, must be so distinguishable from other property, that if the plaintiff recover, the sheriff may be able to deliver the identical goods to him. 1 Chit. PL 121-3. lienee a deed, or money, or corn in a bag or chest, may be recovered in this action.

The question arises, is “a six barreled pistol, called a six shooter or revolver,” so distinguishable as to come within the rule laid down by the authorities? If such a pistol can be readily identified, if it can be certainly ascertained from other pistols, and proved to be the specific property sited for, it clearly follows, that it is such a chattel as may be recovered in an action of detinue. A six shooter or revolving pistol, may be as readily designated as a horse, a cow, a slave, a bag of money, or a sack of wheat; and for all these objects detinue has been commonly maintained. It was held in Mansell v. Israel, 3 Bibb. 510, that detinue will lie against executors or administrators, for money obtained by them in that character.

It has been held, that detinue will lie for a negro woman by name without stating her complexion or age; also for a cow without describing her color, or for a certain number of knives and forks without a particular description. Haynes v Crutchfield, 7 Ala. 189. If such articles can be sufficiently identified to justify the action of deti-nue, it is obvious that an object so rare as a revolving pistol will come within the rule.

2. The next question raised is, does the complaint filed before the justice, set forth a sufficiently explicit description of the property? It is described as “a six barreled pistol .called a six shooter or revolver.” This description it is true, is rather general; it is not as specific as it might have been, it is more descriptive of the class to which the pistol belongs, than of tbe pistol itself. But still we think the description substantially sufficient, even if the action had been commenced in the district,court. The description is as specific as is ordinarily required, either in trover or detinue. Swan’s Pr. 5-85, 589 note 1. In Haynes v. Crutchfield, 7 Ala. 189, a much more general description was held to be good.

Besides, this case was commenced before a justice of the peace, where nothing more than a brief statement of the nature of the plaintiff’s demand or cause of action is required. Hev. 8tat. 314, §1.

3. It is objected that May an interested witness, was permitted to testify in behalf of plaintiff. It appears by •the justice’s amended transcript, that May was offered as a witness and that defendant’s counsel required him to be sworn as to his interest in the event of the suit; that witness answered, that he did not consider himself interested, and that plaintiff' offered to execute a release to witness, but it was not required by defendant’s counsel.

The return was traversed by defendant’s counsel. This traverse states, that May swore that he borrowed the pistol of Boss, and that it had been unexpectedly wrested from him by Wright, in whose possession it was, and that as Boss had sought a specific recovery of the pistol from Wright, he did not consider himself responsible to Boss. It does not appear that there was any evidence to support the traverse. The court decided, that this traverse did not show that the justice had erred. In this decision, we can see no error. The official return of a justice, cannot be impeached by the mere traverse plea of a party or his attorney. But even the traverse does not show that May was an incompetent witness. It shows that the pistol had been unexpectedly wrested from May by Wright. It is a rule of law, that if a borrowed article perish or be lost or injured, by theft, accident or casualty, which could not be foreseen or avoided, the borrower is not liable. 2 Kent’s Com. 574; Story on Bt. § 240. In such a ease the utmost care must be exercised by the bailee; he is liable for slight neglect. It may well be doubted whether May’s answer on voire dire, shows such neglect; it shows that the property had been forcibly wrested from him, and was in possession of the defendant from whom it might be specifically recovered. The plaintiff knowing where his property was, preferred such a recovery to an uncertain remedy against May; and it appears by the return of the justice without denial, that plaintiff proposed to release May, and that thereupon he was permitted to testify without further objection. Admitting the traverse to be correct, we think under all the circumstances, that the court decided correctly in affirming the proceedings of the justice.

S- B. Hendershott and B. Jones, for plaintiff in error, James Baker, for defendant.

Judgment affirmed.