#### Cyrus Felt, plaintiff in error v. Wesley Williams, defendant in error.

Error to Hancock.

The action of detinue is an unusual action, and the boohs furnish but few rules of evidence applicable to it. Great certainty and accuracy in the description of the things demanded, are still required in detinue.

A declaration in detinue for “ a red cow with a white face,” is not supported by proof that “ the cow was a yellow or sorrel cow.”

This cause was tried at the April term, 1835, of the Hancock Circuit Court, before the Hon. Richard M. Young, and a judgment was rendered for the plaintiff in the Court below, the defendant in error.

C. Walker, for the plaintiff in error.

A. Williams and O. H. Browning, for the defendant in error.

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of detinue brought in the Hancock Circuit Court by Williams against Felt, to recover a large red cow with a white face. On the trial of the cause, the plaintiff introduced a witness to prove property in the cow, who testified that the cow claimed by the plaintiff “ was not a red cow, nor was she of such a color which he had ever heard any body call red.” The witness further stated that “the cow was a yellow or sorrel cow.” This was all the testimony that the plaintiff gave respecting the description of the cow. The defendant below moved the Court to instruct the jury to find a verdict for the defen dan'" as in case of a nonsuit, because of a discrepancy between the *207proof and the declaration, in respect to the color of the cow. This instruction the Court refused to give, and this refusal is assigned for error.

The action of detinue is an unusual action, and the books furnish but few rules of evidence applicable to it. It is however laid down “ That great certainty and accuracy in the description of the things demanded, is still required in detinue, because the plaintiff may desire to recover the specific things themselves, which only can be done in this action.(1) The same author says that less ‘certainty of description of the goods in dispute, is required in trespass and trover, because in these actions the plaintiff only recovers damages, but in the action of detinue the judgment is to recover the identical thing itself, or the value, if it is not restored. There is no propriety in requiring great certainty and accuracy in the description of goods in this form of action, if the law does not also require that the proof shall correspond with equal certainty to the description of the goods given in the declaration. In this case there is such a manifest variance between the cow described in the declaration, and the one described by the witness, that the Court ought to have rejected the testimony, as not tending to prove the issue between the parties. As all the proof on the subject of the identity of the cow, is given in the bill of exceptions, and that being adjudged by this Court insufficient to support the plaintiff’s action, it is unnecessary to remand the cause, this Court having power to give such judgment as the Court below ought to have given.

The judgment, therefore, is reversed with costs, and a judgment as in case of a nonsuit rendered.

Judgment reversed.

(1)

2 Saund. 746.