Open main menu

Page:Harvard Law Review Volume 1.djvu/127

This page has been proofread, but needs to be validated.

to be given; and we shall have taken an important step in that direction if we classify all the remedies furnished by the common law, and compare them with the classification before made of judicial remedies generally.

Common-law actions, like actions generally, are either in personam or in rem. Common-law actions in personam are founded upon the actual commission of a common-law tort or the actual breach of a common-law personal obligation. Common-law actions in rem are founded upon the ownership of corporeal things, movable or immovable. The relief given in a common-law action in personam is always the same; namely, a compensation in money for the tort or the breach of obligation, the amount of which is ascertained or assessed by a jury under the name of damages.[1] The relief given in common-law actions in rem is also always the same, namely, the recovery of the res;' but, then, it is to be borne in mind that the only action strictly in rem that lies for a movable res is the very peculiar action of replevin; and, when that action cannot be brought, the only available actions are trover, in which the value of the res in money can alone be recovered, and detinue, in which either the res itself or its value in money is recovered, at the option of the defendant. Indeed, as has been already seen, the common law has not generally the means of enabling a plaintiff to recover the possession of a movable res against the will of the defendant. In replevin that object is accomplished by dispossessing the defendant of the res, and placing the same in the plaintiff’s possession, at the very commencement of the action; but that would be obviously improper except when the defendant has acquired the possession of the res by dispossessing the plaintiff of it. The obstacle in the way of recovering possession of the res itself in an action of detinue does not arise from the nature of the action, but from the common-law mode of

  1. Our law regards a debt as a specific thing belonging to the creditor and in possession of the debtor; and hence the remedy specially provided for the breach of an obligation to pay a debt, namely, the action of debt, is technically an action in rem. Sometimes this is the only remedy; but in most cases the creditor has an election between an action of debt, founded upon the debt itself, and an action of assumpsit or covenant, founded upon the contract by which the debt was created. In the former action, the judgment is that the plaintiff recover the debt itself as a specific thing; in the two latter, the judgment is that the plaintiff recover damages for the detention of the debt. Still, this is only a technical distinction, for the same amount is recovered either way, and the mode of enforcing the judgment is the same.