[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 447 The embarrassments of this case have arisen, chiefly, from the selection of an improper form of action. The plaintiff, claiming to have purchased from the defendant, Isaac W. Blain, several government bonds, and a balance of money theretofore paid by the Messrs. Meigs Co. to his wife, upon his order, commences an action of replevin, to *Page 448 obtain this property from Mrs. Blain. The government bonds are specific articles, distinguishable from all others of a like character by dates and numbers. As to these, an action of replevin for their recovery was well enough. The plaintiff desired to avail himself of the advantages which the law gives when the defendant improperly withholds property belonging to the plaintiff. One of these was the right of seizing the property in advance, and retaining it until the defendant shall give security for its return. The other is the right of imprisonment, in the event of not paying the judgment recovered. For the purpose of recovering the money, the remedy proposed and the advantages sought were entirely inapplicable. On the order of her husband, Meigs Co. had given to Mrs. Blain their check for $9,000, on which she had drawn the money from the bank. Whether she obtained the bills of the bank, the notes of the government, or specie, does not appear. Whatever she obtained, she kept herself, and it was never under the control or in the possession of the plaintiff or his assignor, Mr. Blain.
The claim against Mrs. B., under such circumstances, was simply for money had and received. It was to be pursued in the ordinary manner for the collection of a debt. The extraordinary remedies given in prosecuting for a tort could not be invoked. If by attempting to use them the plaintiff has involved himself in difficulty, he must suffer the consequences.
When the proper action is brought, the rights of the parties will be determined without difficulty. If this money was given to Mrs. Blain by her husband, he being free from debt, I see no reason why she cannot hold it. If it was in her hands as the mere depositary of her husband, it was subject to his order and passed by the transfer to the plaintiff. This question has not been, and could not be, decided in this action. The action of replevin or trover is based upon an improper detention or conversion of the plaintiff's property. Proof of ownership will not of itself authorize a recovery. The plaintiff may prove undoubted ownership; but, unless he proves a *Page 449 conversion also, or a refusal to deliver, he cannot recover. There are many cases to this effect in the books. (Packard v.Getman, 4 Wend., 613; Hallenbake v. Fish, 8 id., 547.) His action for the recovery of a specific $9,000, alleged to be detained from him, is no bar to an action for $9,000 of debt generally due to him from the defendant. As a debt merely it cannot be recovered in the present action. The record cannot, therefore, be a bar to an action for the recovery of the debt simply. (3 How. Pr. R., 297; 18 Id., 94.)
The record does not show whether, in the present case, the plaintiff exercised the right of preliminary seizure, which the law authorizes in an action of replevin. It will illustrate the case if we assume that he did. Let us assume that Mrs. Blain drew this $9,000, upon the check of Meigs Co., in legal tender notes. Assume, further, that she retained the notes in her possession, and that, by the aid of a friend within the garrison, the sheriff was able to take the notes into his possession upon the replevin papers in the suit. The defendant, Mrs. Blain, not being able to give security for their return, they remain in the plaintiff's possession at the time of the trial. Upon the trial it is held that, as to this money, an action of replevin will not lie; that, as to that portion of the demand, judgment must go against him. He has quite mistaken his remedy. Both parties must be restored to the statu quo ante bellum. The plaintiff must give back the money. Mrs. Blain is entitled to receive it. This is precisely what was done at the trial. In my judgment, the direction was right in form as well as in substance. It stated the rights of the parties in this suit and nothing more. If an ordinary action for money assigned to him shall hereafter be brought by the plaintiff against Mrs. Blain, there will be found nothing in this record to prevent its decision upon the merits. Should there be any doubt about the effect of this verdict, which I do not myself anticipate, the record is still open to amendment. No judgment has been entered upon the verdict, and it would be within the authority of the Special Term to direct the insertion of a statement of the ground of the judgment, viz.: the *Page 450 improper form of action, or that the judgment be simply that the plaintiff cannot recover the $9,000.
Several questions of evidence were presented, but I see no error that requires our consideration.
The order of the General Term should be reversed, and judgment entered upon the verdict of the City Court.