Harris v. Hillman , 26 Ala. 380 ( 1855 )

RICE, J.

—The well-known boundaries of the actions of detinue and trover, are distinctly marked, and carefully preserved in our Code. A form of complaint is therein laid down for each of these actions. The form for detinue is under the caption, “For the recovery of chattels in specie”, which aptly expresses the peculiar object of that action. The form for trover is under the caption, “ For the conversion of chattels”, which indicates that conversion should continue to be, as it had ever been, the gist of that action. — Code, pp. 552, 554. The judgment in detinue is, that the plaintiff recover the chattels, if to be had, (but if not to be had, their value,) and damages for their detention. The judgment in trover is, that the plaintiff recover damages only. The evidence which will sustain detinue, will not, in many cases, sustain trover.

The present action is detinue. The complaint is in the very form given in the Code for that action, and is free from any defect. The Circuit Court had no power to allow the plaintiff to convert this complaint into a complaint in trover, and properly overruled his motion to that effect. The power of that court to allow amendments does not, and never did, extend so far as to allow such change in a declaration or complaint.—Herring v. Glisson, 2 Dev. Law R. 156.

It appears that the defendant was a purchaser at sheriff’s sale in January, 1853, of the slave here sued for, and thus obtained the possession in a manner which appeared to be lawful, and that soon thereafter he hired the slave to another person for the remainder of the year 1853, without any notice that the plaintiff intended to assert any right to said slave, or to call in question the right of defendant acquired at said sheriff’s sale; and that soon after he thus parted with the possession under said hiring, this action of detinue was commenced. Such parting with the possession under the contract of hiring, without notice as aforesaid, was not wrongful, and the charge of the court is substantially correct, when construed in connection with-the facts above stated. We do not, however, intend to decide, that if it had appeared that the defendant parted with the possession of the slave under said hiring with notice that the plaintiff intended to assert a right to the slave, or to call in question the right of defendant acquired at sheriff’s sale, that such parting with the possession would, of itself, have exempted him from liability in this action of detinue.—Walker v. Fenner, 20 Ala. 192.

There is no error in the record, and the judgment is affirmed.