thing, and might never be forced to pay (a). Where the plaintiff paid for tallow in advance, which on delivery turned out to be inferior to the warranty, and the plaintiff resold the tallow for a less sum than he had prepaid, and sued in damages for the delivery of inferior tallow, it was held, that, in apportioning the damages, the sum the plaintiff had prepaid could not be taken into account, but that the true measure was, the difference between the value in the market of tallow of the quality contracted for at the time of the delivery, and the amount made by the resale of the tallow actually delivered (b).

(a) Randall v. Roper, 27 L. J., Q. B. 266.

(b) Loder v. Kekulé, 27 L. J., C. P. 27.

CHAPTER XV.

DETINUE (a).

I. Of the Action of Detinue, and in what Cases it may

be maintained,

II. Of the Pleadings and Evidence,

III. Of the Judgment,

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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 of such goods, either by delivery or
finding (b), and refuses to re-deliver them. In Kettle v. Bromsall,
Willes, 118, it was held, 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. In this action the plaintiff seeks to
recover the goods in specie, or on failure thereof the value (for it
is in the election of the defendant whether he will deliver the
specific goods (c), or pay the value thereof (d)), and also damages
for the detention.

As this action proceeds on the ground of property in the plaintiff,
at the time of action brought, it cannot be maintained, if the de-
fendant took the goods tortiously (e), for by the trespass the
property of the plaintiff is divested (f). Hence, also, if a person

(a) Detinue falls within that class of actious called actions of contract, and is therefore within the 3 & 4 Will. IV. c. 42, s. 17, so as to be triable before the sheriff. Walker v. Needham, 3 M. & G. 557.

plaintiff may have replevin, pl. 36.

(f) This position is cited in Com. Dig. and other books; but the opinion of Vavasour, 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. Mills v. Graham, 1 N. R. 140.

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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 (g). Plaintiff had delivered to defendant the title deeds of plaintiff's wife's estate; plaintiff afterwards levied a fine of the estate to the use of his son. Plaintiff afterwards commenced an action of detinue against the defendant for the deeds; it was held, that as the muniments of an estate belong to the person who has the legal interest in it (h), 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, is the party to sue for them (i).

Property in the plaintiff without his ever having had possession is sufficient. Hence an heir may maintain detinue for an heirloom (j). 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 a common informer, 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 (k). 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 (1). The goods demanded must be such as can be distinguished from other property by certain discriminating marks: as money in a bag (m); a horse; a cow (n); a piece of gold, value twenty-one shillings (o); deeds concerning the inheritance of the plaintiff's land, if he can describe what they are, and what land they concern, or if such deeds are in a chest (p); and the like. But for money not in a bag or chest (q), or corn (r), and other things which cannot be distinguished from property of the same kind or description, detinue will not lie.

The gist of the action is the detainer (s). Hence, if the bailee of goods die, detinue will not lie against his personal representative, unless he takes possession of the goods (t). And if there are three executors, and one hath possession, detinue lies against him only (u). But if, after the death of the bailee, a stranger takes the goods, detinue lies against such stranger (v). The action lies,

(g) Bull. N. P. 50.

(h) See Lord v. Wardle, 3 B. N. C. 680; whether the purchase-money has been paid or not; Goode v. Burton, 1 Exch. 189; mortgagee in fee, Newton v. Beck, 27 L. J., Exch. 272.

(i) Philips v. Robinson, 4 Bingh. 106. (j) Bro. Abr. Detinue, pl. 30. (k) Roberts v. Withered, 5 Mod. 193; Wilkins v. Despard, 5 T. R. 112. (4) 1 Roll. Abr. 606, (C.) pl. 1.

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though the defendant quitted the possession before action brought, by delivery of the goods to another (x). But it does not lie against him who never had possession of the chattel, though it does against one who once had, but has improperly parted with the possession of it (y); or lost it through negligence (z); secus, against one who has lost it without negligence (a). If goods be delivered to husband and wife, detinue ought to be brought against the husband only (b). But if they are delivered to the wife before marriage, the action must be brought against husband and wife (c).

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. 3. An unjust detention on the part of the

defendant.

II. Of the Pleadings and Evidence.

If the action be brought for several articles, it is not necessary to set forth the separate value of each in the declaration (d); but the jury must sever the values by their verdict. "The nature of

the action requires that the verdict and judgment be such that a specific remedy may be had for the recovery of the goods detained, or a satisfaction in value for each several parcel, in case they be not delivered" (e).

The plea of non detinet shall operate as a denial of the detention of the goods by the defendant, but not of the plaintiff's property therein, and no other defence than such denial shall be admissible under that plea (ƒ). If the defence, therefore, be, that the goods were not the plaintiff's, or that the defendant was justified in detaining them, that must be specially pleaded (g). Under a plea that the goods were not the plaintiff's, the defendant may set up a lien (h); but he cannot, under the plea of not possessed, set up a tenancy in common (i). Upon issue joined on such plea, it is no defence that there are other persons co-tenants with the plaintiff who are not joined in the action (k). Money cannot be paid into court in this action (1).

W. 420.

(h) Lane v. Tewson, 12 A. & E. 116, n.; but see Mason v. Farnell, 12 M. & W. 684, and a plea of "lien" will be allowed with pleas of "non detinet" and "not possessed." Barnewall v. Williams, 7 M. & G. 403.

(i) Mason v. Farnell, 12 M. & W. 674. (k) Broadbent v. Ledward, 11 A. & E. 209.

(1) Allan v. Dunn, 1 H. & N. 572.

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 (m). The language of the 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, and an omission in this respect cannot be supplied by a writ of inquiry of damages (n); and is ground of error (o). If several things are demanded, the jury ought to find the value of each particular thing (p).

That the option of giving up the goods or paying the value should be in the defendant being considered a hardship, it was enacted by the Common Law Procedure Act, 1854, sect. 78, that the court or a judge may, upon the application of the plaintiff in any action for the detention of a chattel, order execution to issue for the return of the chattel, without giving the defendant the option of paying the value, and that, if the chattel cannot be found (unless the court or judge should otherwise order), the sheriff shall distrain all property of the defendant till he render such chattel, or, at the option of the plaintiff, levy the assessed value; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have levied his damages, costs and interest.