Vandalia Whig and Illinois intelligencer. [volume] (Vandalia, Ill.) 1832-183?, 1834-12-17
FRANKFORT TERM, DEC. 6, 1884.
COURT OF APPEALS.

q FRANKFORT TERM, DEC. 6, 1884.
s COURT OF APPEALS.
q DErINUE.-The action of detinue cannot
be maintained for or on account of slave
who was dead prior to the commencement
of the suit.
CALDWELL vs.. FENwIcK.
Cunningham for plaintiff; Dap;>ss 70, 1ef't
Judge Nichols delivered the opinion Of
the court, 9th October, 1884. Oh. Jus
tice absent.
Fenwick sued Caldwell in detinue, 70,
two slaves; one of them, al proved on the
trial of the general issue, being dead
before the institution of the suit. The
The only question ,ha, need be noticed. is
whether the action could be maintained for
or on account of the slave that was dead
1t seems to us that it cannot. The frame
Of the action and the principles of plead
ing forbid it. Detinue is mode of ac-
ti~n given for the recovery of specific
tAing, and damages for its detention. Tho
judgment is also rendered ia favor of the
plaintiff for the alternative value, provided
the thing cannot be had; yet the recoye-
ry OF the thing itself, is The main object
and inducement to the allowance Of the ac-
ton. The thing sued for has to be 40 sp.-
cIslly described in the writ, declaration,
Judgment and execution, that it may be
distinguished from other things of the same
species. The action is not adapted alone
TO the recovery of the value of thing de-
tanned, nor can it be maintained therefor.
The alternate judgment for the value, is but
amere incident to the judgment for the thing
nor can it be rightfuIv rendered eyceni
where there is judgment for the thing from
winch 1t can result as an incident or conse-
quence. 1t would seem therefore to b, AN
Indispensable requisite that there should he
thing sued for. A demand for dead slave
does not fill this requirement. 1t is not a
Ting estimation or value, such as the law
requires to constitute the basis of n action.
Upon the principle of obvating inconve.
nIence, the action is allowed, where the
defendant has parted with possession before
suit brought. But where the thing is still
IN existence, it is something to be sued
for; and per possibility, the defendan, NAV
shain it and surrender it in discharge Of
the Judgment. Where the thing has been
utterly destroyed before suit brnuph,--
where 1t no longer exists, the plaintiff 5
claim is reduced to mere demand for rep.
sraiion in damages, to BE pursued by other
and more appropriate remedies.
We have met with no authority in main
tenance of the action. The case of Car
rsH v. Early, 4 BIB, 27O, is not such nm
authority. 1t was determined there. that
the death Of a slave pending the action
would not defeat recovery, and no doubt
properly. For, as the action was rightly
instituted, the slave being alive, and some
thing to sue for in existence at the time of
its inception, subsequent casualty, not
within the control of the plaintiff, should
not have been allowed to defeat his suit
Besides he could not have recovered the
costs to which he was entitled, but by be-
Ing allowel to progress to judgment. The
language of the opinion, when taken as it
should be in reference to the case before
the court, imports nothing more than that
the death of the slave after suit brought,
does not defeat the action. If it did i'm.
part any thing more, it was SO far extra.
judicial.
AS the court below allowed the plaintiff
to recover for the slave that had died before
the institution of the suit, the judgment
must be reversed with costs, and the cause
remanded. with instructions for new trial
and further proceedings, consistent here.
with Commonwealth.