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[After observations relating to the validity of the composition deed, and the power of a Court of Error to draw inferences, the

LORD CHANCELLOR concluded] : — [347] It appears to me, therefore, my Lords, that the only mode

of arriving at justice in this case, or rather of enabling the parties to arrive, if they think fit, at justice in the case, will be for your Lordships to affirm the judgment of the Court below, and dismiss the appeal, as usual, with costs, and to say that this affirmance shall be without prejudice to any application which the appellant may be advised to make to the Court of Bankruptcy with respect to the matters in question.

Lord COLONSAY concurred.
Lord CAIRNS:-

[After some observations upon the arguments which had been used as to the validity and effect of the deed],

But the difficulties which we have to encounter in the present case, before we can arrive at a decision upon these arguments, are these. In the first place, we have an action of detinue brought for the recovery of these promissory notes, not against the person or persons who hold the promissory notes, but against another person who has given notice to the holders of the notes not to part with them. The persons who hold the notes are clearly not his servants or agents, they are independent persons, trustees appointed in medio between him and the creditors under the deed, — and his notice may be right or it may be wrong, but it appears to me to be impossible to say that the possession of the notes by the trustees is the possession of the defendant in the action, and that therefore the defendant is liable to an action of detinue for detaining these notes which are not in his possession. I am sorry to say that this appears to me to be an absolutely

fatal impediment in the way of the plaintiff. I think if [* 348] your Lordships were to disregard that * impediment, the

result would be a decision of the House affirming that an action of detinue will lie as against a person who has given notice to trustees not to part with some property which is in their possession. It seems to me that that would be a most alarming doctrine, and one for which there is no foundation that I am aware of in any authority.·

[After dealing with the questions as to the validity of the composition deed, and the power of a Court of Error to draw inferences, Lord CAIRNS concluded] :

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I quite concur with the order, which it is now proposed that your Lordships should pronounce, namely, that this appeal should be dismissed, and that the judgment of the Court below should be affirmed with costs, but that this should be without prejudice to any application which the appellant may be advised to make to the Court of Bankruptcy touching the matters in question in this

case.

Judgment of the Court of Exchequer Chamber affirmed,

with costs, but without prejudice to any application which the plaintif may be advised to make to the Court of Bankruptcy in respect to the matters in question.

ENGLISH NOTES.

The first part of the rule is supported by the following cases : Gledstanes v. Hewitt (1831), 1 Cr. & J. 565, 1 Tyr. 445; Whitehead v. Harrison (1844), 6 Q. B. 423, 13 L. J.Q. B. 312, 2 Dowl. & L. 122; Clossman v. White (1849), 7 C. B. 43, 18 L. J. C. P. 151, 6 Dowl. & L. 563.

The word "detain" in the declaration meant that the defendant withheld the goods, and prevented the plaintiff from having the possession of them. Clements v. Flight (1846), 16 M. & W. 42, 16 L. J. Ex. 11, 4 Dowl. & L. 261. Accordingly an averment that the defendant was ready and willing to deliver possession to the plaintiff was a bad plea. S. C.

This case also shows the nature of the evidence which is necessary to support the action. In Mills v. Graham (1804), 1 Bos. & P. (N. R.) 140, 8 R. R. 767, goods were delivered to the defendant, who was an infant, by the plaintiff who was ignorant of the infancy, for the purpose of executing some work upon them. The plaintiff demanded back the goods, offering to pay anything that might be due, but the defendant refused to return them and declared that he would contest the matter at law, as he was under age. The Court held that the infant, having repudiated the contract, might be treated as having obtained the goods by wrong, and that the plaintiff was entitled to recover. Had a contract existed, the plaintiff might have been in a difficulty. Jennings v. Rundall (1799), 8 T. R. 335, 4 R. R. 680.

Detinue will lie against a bailee, if the goods have been lost. Reeve v. Palmer (Ex. Ch. 1858), 15 C. B. (N. S.) 84, 28 L. J.C. P. 168. If the goods have been parted with to another before action, the action will also lie. Jones v. Dowle (1841), 9 M. & W. 19, 11 L. J. Ex. 52, 1 Dow). N. S. 391.

Where the goods have been parted with to a third person the plaintiff

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may maintain an action against the parties jointly where there is a joint detainer, Garth v. Howard (1832), 5 Car. & P. 346, 8 Bing. 451, 1 Moo. & Sc. 628; or he may maintain an action against the person in whose hands the goods are. Dirks v. Richards (1842), 5 Scott N. R. 534, 4 Man. & Gr. 574, Car. & M. 626.

Where the goods have been originally pledged by the plaintiff, and re-pledged by the pledgee, the plaintiff must tender the sum for which he originally pledged the goods. Donald v. Suckling (1866), L. R., 1 Q. B. 585, 35 L. J. Q. B. 232, 14 L. T. 772, 15 W.R. 13. He need not tender the sum for which the pledgee is liable, if in excess of the amount of the original pledge. Dirks v. Richards, supra. An action of detinue cannot, however, be maintained against a mortgagee by deposit of title deeds, until he has been paid in full; and tender of a sufficient amount which is rejected is not, for this purpose, equivalent to payment. Bank of New South Wales v. O'Connor (P. C. 1889), 14 App. Cas. 273, 58 L. J. P. C. 82, 60 L. T. 467. In that case the decisions of the Court of Common Pleas, in Chilton v. Carrington (1854), 15 C. B. 95, 730, 24 L. J. C. P. 10, 78 ; s. C. (1855), 16 C. B. 206, 24 L. J.C.P. 153, were explained.

Where goods are seized as a distress for rent, and a sufficient sum is tendered, an action of detinue will lie if the tender is made before the impounding. Loring v. Warburton (1858), El. Bl. & El. 507, 28 L. J. Q. B. 31, 4 Jur. N. S. 634. The action will not lie, where the tender is after the impounding of cattle distrained damage feasant. Singleton v. Williamson (1862), 7 H. & N. 747, 31 L. J. Ex. 287, 5 L T. 645.

An agent has, under exceptional circumstances, been held entitled to maintain an action of detinue against his employer. Craig v. Shedden (1858), 1 Fost. & Fin. 553. There an attorney was entrusted by the Court with documents, which he undertook to return. The client obtained these documents from the attorney. The latter was held entitled to maintain the action in order to recover them. To the same effect is Sands v. Shedden (1858), 1 Fost. & Fin. 556.

Where several are interested in chattels, the first of the persons interested who obtains possession is entitled to retain it against the others. In an action of detinue, the defendant may set up this title in bar of the action. This was allowed against one of two or more joint tenants or tenants in common. Atwood v. Ernest (1853), 13 C. B. 881, 22 L. J. C. P. 225, 17 Jur. 603, 1 C. L. R. 738; Morgan v. Marquis (1853), 9 Ex. 145, 23 L. J. Ex. 21.

A beneficiary was held not entitled to maintain an action of detinue against the bailee of the trustee. Foster v. Crabb, No. 14 of “Deeds" 8 R. C. 672. A person obtained from the Herald's College a grant of arms

Nos. 1, 2. — Crossfield v. Such ; Latter v. White. — Notes.

to be borne by himself and the descendants of his brother. The brother had two sons, the elder of whom was the heir-at-law of the grantee, and the other his executor jointly with another. The grantee bequeathed all his household goods and effects to his wife, who took possession of the grant.

The nephews were held not to have such an exclusive interest in the grant as would entitle them to maintain an action against the widow. Stubs v. Stubs (1862), 1 H. & C. 257, 31 L. J. Ex. 510.

The difficulty of enforcing specific delivery in a Court of Law, has been considered a sufficient ground for the interposition of the Court of Equity, as in Fells v. Read (1796), 3 Ves. Jr. 70, 3 R. R. 47. In the notes to Cuddee v. Rutter, No. 62 of “ Contract,” 6 R. C. 614, 645, other cases will be found bearing on the subject.

It is now provided by the Rules of Supreme Court 1883, Order 48. r. 1, that the Court may order the delivery of the specific property in an action of detinue, where the property sought to be recovered is not money. The Sale of Goods Act 1893 (56 & 57 Vict. c. 71), s. 52, also provides for specific performance of contracts relating to the sale of goods. The earlier of these provisions reproduces the Common Law Procedure Act 1854 (17 & 18 Vict. c. 125), s. 78, and the latter the Mercantile Law Amendment Act 1856, (19 & 20 Vict. c. 97), s. 2. The discretion vested in the judge under the Common Law Procedure Act 1854, was liable to be reviewed, Chilton v. Carrington (1854), 15 C. B. 730, 24 L. J. C. P. 78 and could be exercised by a County Court Judge. Winfield v. Boothroyd (1886), 54 L. T. 374, 34 W. R. 501.

The property in goods sued for in detinue is not displaced until after the judgment has been satisfied. Scarth v. Scarth (Ch. App. 1874), L. R., 10 Ch. 234, 44 L.J. Bk. 29, 31 L. T. 737, 23 W.R. 153; Ex parte Drake, In re Ware (C. A. 1877), 5 Ch. D. 866, 46 L. J. Bk. 105, 36 L. T. 677, 25 W. R. 641.

The Statute of Limitations runs from the demand and refusal to deliver the property. Wilkinson v. Verity (1871), L. R., 6 C. P. 206, 40 L. J. C. P. 141, 24 L. T. 32, 19 W. R. 604; Spackman v. Foster (1883), 11 Q. B. D. 99, 52 L. J. Q. B. 418, 48 L. T. 670, 31 W. R. 548; Miller v. Dell (C. A. 1890), 1891, 1 Q. B. 468, 60 L. J.Q. B. 404, 63 L. T. 693, 39 W. R. 342.

The period of limitations is 6 years, 21 Jac. I. c. 16.

AMERICAN NOTES.

The wrongful detainer and not the original taking is the gist of the action of detinue Melton v. McDonald, 2 Missouri, 45; 22 Am. Dec. 437. The manner in which the chattel came into the possession of defendant is immaterial. Willick v. Traun, 27 Alabama, 562.

No. 1. — Seaman v. Dee. — Rule.

The doctrine of the principal cases is declared in actions of trespass in this country. Vosburgh v. Welch, 11 Johnson (New York), 175; Hanmer v. Wilsey, 17 Wendell (New York), 91.

In replevin, where the successful party has become repossessed, his damages are what it cost him to get possession; as when the sheriff wrongfully levies on and sells chattels, and the owner becomes the purchaser. Leonard v. Maginnis, 34 Minnesota, 506. The same is implied in Hanselman v. Kegel, 60 Michigan, 510. If the plaintiff has had possession during the suit he may still have damages for the taking and detention up to the time of replevin. Fisher v. Whoollery, 25 Pennsylvania State, 197; Donohoe v. McAleer, 37 Missouri, 312.

In Morgan v. Cone, 1 Devereux & Battle Law (Nor. Car.), 234, it was held that in detinue damages are only consequential upon the recovery of the thing sued for; and therefore if the plaintiff, pending the suit, obtains possession of it, he cannot proceed for the damages, but his suit fails altogether. “He falsifies the writ by his own act, and thereby defeats that action. It is a settled rule that wherever the plaintiff falsifies his own writ, and this appears to the Court, the writ abates." “ The thing detained is all that is demanded, and the damages are awarded to render the restitution complete. In either case, if the demandant or plaintiff by his own act destroy the right to restitution, there is an end to his demand of restitution.”

In the Code States the old forms of actions for recovery of specific chattels are generally abolished, and an action for “claim and delivery,” or substantial replevin, is substituted, providing for the delivery of the property to the claimant on instituting the action, and for judgment for ownership and possession and damages for taking and detention.

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An executor (or administrator) is liable at law, as for a devastavit, for assets wasted by his negligence.

An executor who permits an interest-bearing debt of his testator to remain unpaid, while possessed of assets sufficient to satisfy the principal, cannot set up the payment of interest, accrued since the death of the testator, against the claim of a creditor.

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