CHAP. XVI. DETINUE (1). I. Of the Action of Detinue, and in what Cases it may be maintained. II. Of the Pleadings and Evidence. III. Of the Judgment. I. Of the Action of Detinue, and in what Cases it may be maintained. THE action of detinue may be maintained by any person who has either an absolute or a special property in goods against another, who is in actual possession, either by delivery or finding3, &c. (2) of such goods, and refuses to redeliver them. In this action the plaintiff seeks to recover the goods in specie, or in failure thereof the value (for it is in the election of the defendant, whether he will deliver the specific goods, or pay the value thereof.) and also damages for the detention. a 1 Inst. 286. b. ton's Ent. pl. 202. Dalton's Shff. b See distringas ad deliberand. As- 322. Restall's Ent. 212. (1) This action has fallen into disuse on account of the defendant being permitted to wage his law. (2) In Kettle v. Bromsall, Willes, 118, it was holden, that detinue would lie for things lost and found, as well as for things delivered. If A. bargains and sells goods to B. upon condition, that if A. pays B. a certain sum of money at a day fixed, the sale shall be void; if A. pays the money, he may have detinue for the goods, although they came not to the hands of B. by bailment, but by bargain and sale. Bateman v. Elman, Cro. Eliz. 866. * F. N. B. 324, Ed. 4to. S. P. As this action proceeds on the ground of property in the plaintiff, at the time of action brought, it cannot be maintained, if the defendant took the goods tortiously, for by the trespass the property of the plaintiff is divested (3). Hence, also, if a person detain the goods of a feme covert", which came to his hands before the marriage, the husband alone must bring the action; because the property is in him at the time of action brought. Property in the plaintiff without ever having had possession is sufficient. Hence an heir may maintain detinue for an heir loom. So if it be enacted by a statute', that goods imported in any other manner than as therein directed, shall be forfeited, one moiety to the king, and the other moiety to him who will inform, seize, or sue for them: a subject may have detinue for the moiety of goods imported contrary to the provisions of the statute; for by the illegal importation the property is divested out of the owners, and by bringing the action it is vested in the plaintiff, by relation, from the time of the offence committed (4). So if I. deliver goods to A., to deliver to B., B. may have detinue; for the property is vested in him by the delivery to his use. The goods demanded must be such as can be distinguished from other property, by certain discriminating marks; as money in a bag"; a horse; a cow'; a piece of gold, value twenty-one shillings; deeds concerning the inheritance of the plaintiff's land*, if he can describe what they are, and what land they con c 6 H. 7. 9. a. Bro. Abr. Detinue, pl. 53. per Brian, C. J. may have replevin, pl. 36. d Bull, N. P. 50. e Bro, Abr. Detinue, pl. 30. t. v. Withered, 5 Mod. 193. 12 Mod. 92. Salk. 223. S. C. g 1 Rol. Abr. 606. (C.) pl. 1. h 1 Inst. 286. b. 1 Rol. Abr. 606. (A.) pl. 1. f See stat. 12 Car. 2. c. 18. Roberts q. i F. N. B. 322. (A.) ed. 4to. k I Inst. 286. b. (3) This position is cited in Com. Dig. and other books; but the opinion of Vavasor, J. to the contrary, in the same case, seems to be better founded. See the reasoning of Anderson and Warburton, Js. in Bishop v. Montague, Cro. Eliz. 824, to the same effect, but applied to the action of trover. (4) This case was recognised in Wilkins v. Despard, 5 T. R. 112, where it was holden, that if a ship be seized as forfeited under the navigation act (12 Car. 2. c. 18.) by a governor of a foreign country under the dominion of Great Britain, the owner cannot maintain trespass against the governor, although there has not been any sentence of condemnation; because the forfeiture is complete by the seizure, and the property is thereby divested out of the owner. cern', or if such deeds are in a chest: and the like. But, for money (not in a bag or chest) or corn", and other things which cannot be distinguished from property of the same kind or description, detinue will not lie. The gist of the action being the detainer, it is necessary, that the defendant should be in possession of the goods. Hence, if the bailee of goods die, detinue will not lie against his personal representative, unless he takes possession of the goods (5). But if, after the death of the bailee, a stranger takes the goods, detinue lies against such strangers. If goods be delivered to husband and wife, detinue ought to be brought against the husband only'. But if they are delivered to the wife before marriage, the action must be brought against husband and wife. From the preceding cases it may be collected, that the grounds of the action of detinue are, 1. A property in the plaintiff, either absolute or special (at the time of action brought) in personal goods which are capable of being ascertained. 2. A possession in the defendant by bailment, finding, &c. 3. An unjust detention on the part of the defendant. II. Of the Pleadings and Evidence. THE manner in which the goods came into the possession of the defendant is matter of inducement only; hence, if the plaintiff declares on a bailment, the defendant cannot plead that the plaintiff did not bail the goods; for the bailment is not traversable'. So where the plaintiff declared, that the goods came to the hands of the defendant by tinding", and the evidence was, that the plaintiff had delivered the goods (5) Executors are chargeable in this action, on the ground of possession only. Bro. Ab. Detinue de biens, pl. 19. If there are three executors, and one hath possession, detinue lies against him only. Ib. te as a to the defendant (an infant) for a special purpose, and the defendant refused to re-deliver them; it was holden that the evidence supported the declaration. If the action be brought for several articles, it is not necessary to set forth the separate value of each in the declaration; it is sufficient if the jury sever the values by their verdict. The plaintiff must prove the detainer of the goods precisely as laid in the declaration. Hence, in detinue for a bond for 100%. upon bailment", if defendant plead, that he did not receive a bond for such sum, and it is found that he received a bond for a greater sum, there must be a verdict for the defendant; because the bond is not the same as that which the plaintiff denial of the demands. The general issue in this notion is non detinet, of detention of that the defendant does not detain the goods in question goods by the deft., Upon this issue, the defendant cannot give in evidence, but no of the that the goods were pawned to him for money which has Plaintif pronot been paid, for such matter ought to be pleaded specially-perty herein, but he may give in evidence a gift from the plaintiff: for and no other thie proves, that he does not detain the plaintiff's gooded such devial defence than Plaintiff had delivered to defendant the title deeds of plain-shall be admis. tiff's wife's estate; plaintiff afterwards levied a fine of the ble under estate to the use of his son. Plaintiff afterwards commenced an action of detinue against the defendant for the deeds; it' that plea. was holden', that as the muniments of an estate belong to the person who has the legal interest in it, plaintiff could not recover; for at the time the action commenced the deeds were not the property of the plaintiff, but of the son; who being the true owner, ought to sue for them at once. III. Of the Judgment. THE form of the judgment in this action is, that the plaintiff do recover the goods in question, or the value thereof, if the plaintiff cannot have the goods, and his damages; that is, damages for the detention (6). The language of the x Pawly v. Holly, 2 Bl. R. 853. y 2 Roll. Abr. 703. Trial, pl. 11. z 1 Inst. 283. a. a Philips v. Robinson, 4 Bingh, 106. b Townsend's 1st Book of Judgments, (6) The judgment in trover is, "that the plaintiff do recover his damages." Knight v Bourne, Cro. Eliz. 116. judgment being in the alternative, that the plaintiff do recover the goods, or the value thereof, it is incumbent on the jury to find the value (7), and an omission in this respect cannot be supplied by a writ of inquiry of damages. c Per Coke, in Cheney's case, 10 Rep. 119. b. recognised by Holt, C. J. in Herbert v. Waters, Salk. 206, where he said, that he thought that a con trary determination in Burton v. Robinson, Sir T. Raym. 124. and 1 Sid. 246, was not law. (7) If several things are demanded, the jury ought to find the value of each particular thing. East, T. 3 H. 6. 43. a. |