Robley v. Culwell ( 1896 )

Mr. Presiding Justice Boggs

delivered the opinion oe the Court.

Debt is the appropriate action for the recovery of a penalty provided by statute.

Here the action was trespass, and a count in debt for the penalty could not properly be added.

The purpose of this act of 1895, here sought to be invoked, wa,s to secure to the mortgagor, whose property has been sold under a chattel mortgage, full information as to the sale, the amount received for each article, and the expenses of the sale, etc. '

It presupposes a legal sale, and its design is to secure to the mortgagor the full benefit of such a sale by investing him with a knowledge of the facts in detail.

Here the validity of the sale was denied, and the sale was overthrown and the mortgagee held to account as a trespasser.

Hence the statute in question had no application. It was error to give the instruction set forth in the statement of the case, and the amendment to the declaration should not have been allowed.

The judgment is reversed and the cause remanded.