Opinion
(December Term, 1851.)
1. In an action of detinue, a declaration for "a set of turner's tools" is too indefinite, and cannot be supported.
2. But if there be added the words, "being the same formerly owned by one Burkett," the description becomes sufficiently specific and capable of being identified.
APPEAL from Battle, J., at Spring Term, 1851, of ROWAN.
The question submitted in this case is sufficiently stated in the opinion delivered in this Court.
No counsel for plaintiff nor defendant.
This is an action of detinue for a set of turner's tools. Both parties claimed under one Epperson. The bill of sale to the plaintiff was assailed by the defendant upon the ground that it was obtained by duress. His Honor's charge upon this point has not been complained of in the argument here, and it certainly was correct. The defense before us has been placed upon an objection appearing on the face of the record. It is that the articles sued for are not sufficiently set forth in the writ. The court charged that all the witnesses spoke of them as the tools once owned by Burkett and then in defendant's possession, and that they were sufficiently identified by the proofs. A verdict and judgment were rendered for the plaintiff, and defendant appealed.
If the case rested on the description of the tools in the writ, (173) we should be at a loss how to decide the question; but we are relieved from that difficulty by the declaration, which sufficiently supplies any deficiency that may exist in it. In that the tools are described, as stated in the evidence, "as the tools formerly owned by one Burkett." In the action of detinue more certainty is required in setting forth the property demanded than in an action of trover, for the reason that, in the latter action, the plaintiff recovers not the thing converted, but damages for the conversion; whereas the object in the former is to recover the thing itself. It is necessary, therefore, that the thing detained should be capable of being specifically identified or clearly distinguishable from the other property. Hence it will not lie simply for money, though the amount be specified, nor for so much corn, because, under such descriptions, these things have no mark or quality whereby they can be distinguished or known from any other money or corn, whereby the sheriff may be guided in delivering them to the plaintiff. But if the money or corn is described as set apart by itself, so as to be identified as the particular article sued for, as being in a box or bag, detinue will lie. Coke Lit., 286; Banks v. Whitsborn, Croke Eliz., 467. Their being in a box or bag is a sufficient description, without any description of the box or bag; their being in such position, set apart from like articles, will carry with it the requisite certainty. So detinue will lie for deeds or other writings if the plaintiff can describe them, though the date be not mentioned. Buller N. P., 50; Bacon Abr., title, Detinue. It is not necessary, therefore, that the articles sued for should be minutely described in every particular, but they must be capable of such a description as will identify them and point them out as the identical (174) articles sued for. In this case the declaration, which is according to the testimony, describes the tools as being the same "formerly owned by one Burkett." This description we think sufficient to distinguish them from any other set of turner's tools in the possession of the defendant as much as saying they were in a box, without describing the box.
We see no error in the judge's charge or deficiency in the record.
PER CURIAM. No error.