The rules of Descent are universally prescribed by statute in the United States, and although they vary materially in the different States, there is probably no variation from the doctrine of the Rule of the principal case. A useful abstract of the statutes of Descent may be found in 3 Washburn on Real Property, 5th ed., p. 21, et seq.

THE gist of an action of detinue is the detainer. The return of the goods to the plaintiff after action brought destroys the cause of action so far as it is founded. on a claim to the goods or to their value; and the plaintiff, in that case, can only recover the loss that he has suffered by reason of the detainer.

Crossfield v. Such.

22 L. J. Ex. 65-67 (s. c. 8 Ex. 159).

[65] Detinue. - Pleading. - Delivery up of Goods to Plaintiff. - Plea to Damages.

In detinue for goods, if all or any are delivered up after action brought, the plaintiff cannot have judgment to recover the goods so delivered to him, or their value; but may have judgment to recover damages for their detention, if he has sustained any damage; and may have judgment to recover the residue of the goods or their value, and damages for their detention.

Payment into court by way of amends may be made in detinue, that action being a personal one within the 3 & 4 Will. IV. c. 42, s. 21.

To detinue for goods, the defendant pleaded, first, except as to part of the goods, non detinet; secondly, as to that part, that the plaintiffs ought not further to maintain their action in respect thereof, because after the commence

No. 1. Crossfield v. Such, 22 L. J. Ex. 65.

ment of the suit the defendant delivered the same to the plaintiffs, who accepted and received them; thirdly, as to the damages sustained by the detention of those goods, payment into court of 1s., averring no damages ultra: Held, on general demurrer, that the second and third pleas were good.

Detinue for goods consisting of chairs, tables, and other household furniture. First plea, except as to part of the goods, non detinet; secondly, as to that part, that the plaintiffs ought not further to maintain their action in respect thereof, because the defendant after action brought delivered the same to the plaintiffs, who then accepted and received them; last plea, as to the damages sustained by the plaintiffs by the detention of those goods, payment of 1s. into Court, with an averment that the plaintiffs had not sustained damage to a greater amount by reason of the said detention.

General demurrer to the last two pleas.

Willes, in support of the demurrer (Nov. 17), was stopped by the Court.

Lush, contra, for the defendant. The pleas are good. The action of detinue is a peculiar action, and differs from trover in this respect, that it is brought to recover the goods themselves, or the value thereof, and damages for the detention. That being the case, a re-delivery and acceptance of part of the goods after action brought is a good answer pro tanto to the further maintenance of the action. In Vin. Abr. tit. "Detinue," D, 5, pl. 58, the law is thus stated: "Detinue of divers parcels of goods, tender of part of them is a good plea of them before verdict." Brooke's Abr. tit. Tender," pl. 39, cites 1 Ric. III. Williams v. Archer, 5 C. B. 318; 17 L. J. (N. s.) C. P. 82, was an action of detinue for railway scrip, which had been delivered up to the plaintiffs after action. brought. It was held, that the jury in estimating the damages might take into consideration the difference in value of the scrip at the time of the demand and at the time of its delivery to the plaintiffs, and that, as the scrip had been re-delivered, the verdict and judgment were properly confined to an assessment of damages for the detention.

[PARKE, B. A delivery and acceptance are equivalent to a tender; if, therefore, a tender is good, à fortiori a delivery and acceptance are better.]

It is not contended, on behalf of the defendant, that the plea to the damages is good on special demurrer, but the argument is, that

No. 1. Crossfield v. Such, 22 L. J. Ex. 65, 66.

it is good in substance. Williams v. Archer proceeded on the principles laid down in Henry v. Earl, 8 M. & W. 228; 10 L J. (N. S.) Ex. 265. The plaintiffs might, in the present case, have taken issue on the sufficiency of the damages.

Willes. In Williams v. Archer the jury found that the goods had been re-delivered to the plaintiffs, and, therefore, they were warranted in confining their verdict to an assessment of damages for the detention of the goods. A plea similar to the second plea in this case was not necessary, and, therefore, is not allowable. The case of Williams v. Archer shows that the jury may find by their verdict that the goods were delivered up, and so may excuse themselves from finding damages in respect of the value of the goods. The law is thus stated in Fitz. N. B. "Writ of Detinue," 139: M: "And if a man have goods delivered over to another, and afterwards a writ of detinue is brought against him, by him

who hath right unto the goods; now, if the defendant [* 66] defending the action deliver the goods * over to whom they were bailed to him for to deliver, the same is a good bar in the action, because he hath delivered them according to the bailment made unto him." In Com. Dig. "Pleader," 2, X, 5, it is stated that a defendant in detinue may plead " Uncore prist.

"

[Lush. A similar plea was held bad in Clements v. Flight, 16 M. & W. 42; 16 L. J. (N. s.) Ex. 11.]

[PLATT, B. The jury were at liberty to assess the damages with respect to a particular portion of the goods. Henry v. Earl differs from the present case, as that was a case of accord and satisfaction. If this form of plea is allowed, the plaintiffs may be put to the expense of trying whether the goods were returned or not. If your argument is right, you may obtain judgment that the goods may be delivered up a second time.]

The jury would not find such a verdict, and if they did, the Court would interfere by virtue of its equitable jurisdiction, and prevent any injustice from being done.

Lush, in reply. If the defence set up by the second plea were established at the trial, it would be a good answer. The substance of the argument on the other side is, that the second plea amounts to non detinet. If the plaintiffs' view is correct, the judgment of the Court would be that the defendant would be bound to deliver up the goods twice over. The plea is good in substance, and is a good defence to the further maintenance of the action.

[PARKE, B.-The question in this case turns upon the meaning of the passage in Brooke's Abr. tit. "Tender," pl. 39, relating to tender before verdict.] Cur. adv. vult.

The judgment of the Court was now delivered by 1 POLLOCK, C. B. His Lordship stated the pleadings, and proceeded: In this case we are of opinion, after consideration and upon reference to the old authorities, that both pleas are good. As to the second, it is to be observed that it is pleaded in bar only of the recovery of the goods specified or their value; and it seems to be highly reasonable to hold, that the object of the suit being to recover the goods in specie or their value, to be assessed by the jury, and also damages occasioned by their detention, the first object is completely answered by delivering to, and an acceptance by the plaintiffs of the goods since the commencement of the suit; leaving the plaintiffs to recover by verdict of the jury the damage they have sustained by the goods being improperly detained. The old authorities completely bear out this view of the case. In Brooke's Abr. tit. "Tender," pl. 39 (referred to in Vin. Abr., tit. "Detinue," b. 5, pl. 58), it is said, "Detinue de divers p'cels bins, tend del part de eux est bò ple del eux devàt v'dict, & e contra puis v'dict, ou inq'st taxe un somm ingrosse pur dam. del touts les biens, & ne severa les dam. Brooke refers to Fitz. Abr. tit. "Verdit," pl. 13, and Fitzherbert refers to the Year-Book, 1 Ric. III. fol. 1, where the case is found at length. That case was heard before all the Judges. It was an action of detinue for several goods which were estimated in value at one sum in the declaration and before the jury; and the question was, whether any judgment could be given upon verdict, and the majority were of opinion that it could be given for the whole value, and if all the goods were not given up and one article was withheld, the defendant was liable for the value of all: the contention on the part of the defendant having been that the different goods should have been valued separately, so that if one chattel only was withheld the defendant would be liable for the value of that chattel only; and, according to the report in the Year-Book, this was generally thought right, although the majority of the Judges decided otherwise. In the course of the discussion, FAIRFAX, J., said, that in detinue for two things the defendant might at first have given up one and pleaded as to the

1 POLLOCK, C. B., PARKE, B., ALDERSON, B., and PLATT, B.

No. 1. Crossfield v. Such, 22 L. J. Ex. 66, 67.

other, which seems to have been conceded; and the inconvenience insisted on the other side might have been avoided if it took place before verdict, after verdict it was too late, and then to pay the value of all if one article was not delivered up. This is very clear and intelligible. If there is a good defence to part of the

goods by reason that the defendant was always ready to [* 67] * deliver, and the jury assessed the value of the residue of

the goods, and, we presume, damage also, but none as to the other goods actually delivered up, yet, if there was no defence as to the part delivered up, then the jury will assess the value as to the residue and damages for the prior detention of the part delivered up. In another case, however, a part of the goods was produced in court and delivered to the plaintiff; the defendant had the benefit of the delivery and no damages were assessed against him; he was simply amerced, probably because the articles sought to be recovered were deeds, and no damage shown by their having been detained. That case was in the 38 Edw. III., fol. 36, and it is stated: "Detinue brought for deeds; some were produced; the defendant pleaded non detinet as to the remainder; those produced were delivered up to the plaintiff; the defendant was amerced for the detainer." And in the subsequent case, 36 Hen. VI. fol. 26, b., also of detinue of deeds, the Court refused the prayer of damages for detention of the deeds, as to which the defendant said nothing, because the plaintiff had not been delayed, and they gave him judgment to recover the deeds only. It seems, therefore, in detinue for goods, that if all or any are delivered up after suit, the plaintiff can have no judgment to recover them or their value, for that would be actum agere; but he may have judgment to recover damages for their detention if the plaintiff has sustained any, otherwise not; and for the residue the plaintiff may have the usual judgment to recover them or their value, and damages for their detention; and it seems to us, therefore, that the plea as to the goods delivered up is good, and that the plaintiffs ought not to have judgment to recover what they have already got. The last plea is payment of money into court on account of damages for the detention. In the 3 & 4 Will. IV. c. 42, s. 21, there is a provision which seems to us to apply to all actions with the exceptions mentioned, of which detinue is not one. In all personal actions money may be paid into court by way of compensation or amends; this is a personal action, in