Detinue. with the object of compelling him to appear and answer the plaintiff's claim; and formerly, if the defendant failed to appear, the plaintiff could not recover anything from him (c). Also, if judgment were given for the plaintiff on the trial of a personal action, he could have no writ directly enforcing the restitution of anything whereof the defendant had unjustly deprived him: but his ultimate remedy was to obtain satisfaction of the amount of money adjudged due to him for debt or damages, by seizure of the defendant's goods or lands, or by the imprisonment of his person (d). Now of the remedies given to the dispossessed owner of chattels, trespass and trover were for damages only, and therefore purely personal (e). Detinue, being originally an action ex contractu (f), was personal in its mesne process; so that, if the defendant would not appear, the plaintiff could not recover the goods. And judgment for the plaintiff in detinue was conditional, (c) The defendant in a personal action might be attached by gage and pledges to appear, and then distrained by all his lands and chattels continually until he appeared; he might moreover be arrested in trespass vi et armis at common law, and in actions of account, debt, detinue, and on the case by statute. But before the year 1832 the plaintiff in a personal action could never obtain final judgment against the defendant in default of his appearance. If the defendant absconded, the plaintiff's only remedy was to proceed against him by distress infinite to compel his appearance, or to pursue him to outlawry in actions wherein his person might be arrested. See Bract. fo. 439 b441 a; Britt. liv. i. ch. 27, ss. 1-5, 12; Finch. L. ch. 26; Co. Litt. 288 b; 3 Black. Comm. 280, 281; 1 Tidd's Practice, 109-112,128-130, 9th ed. Stat. 2 Will. IV. c. 39, s. 16, first enabled the plaintiff in a personal action to obtain final judgment in default of the defendant's appearance; arrest on mesne process was abolished in the year 1838 by stat. 1 & 2 Vict. c. 110. Every action is now commenced by a writ of summons calling on the person sued to enter an appearance in the action, and if he fails to do so, the plaintiff may obtain judgment in his own favour. An appearance is entered by delivering, either personally or by solicitor, a memorandum in writing to the proper officer of the court, requesting him to enter the appearance. See Rules of the Supreme Court, 1883, Orders II., XII., XIII., and App. A., Parts I. and II. (d) See post, Part I. ch. 2; Part II. ch. 3. A judgment creditor's remedy by imprisonment of the debtor was taken away at the end of the year 1869 by stat. 32 & 33 Vict. c. 62. (e) Ante, p. 4. viz., that the plaintiff should recover the chattels sued for, or their value, if they could not be had (g). The defendant, after judgment against him, might indeed be distrained by all his lands and chattels in order to make him restore the goods: but if, after this, he still continued obstinate, the plaintiff could only recover the value of the goods against him (h). Since 1854, however, it has been provided by statute that the Court. or a judge may, on the application of the plaintiff in any action for the detention of goods, order that execution shall issue for the delivery of the goods, without giving the defendant the option of retaining the goods on paying their value (i). As to replevin, the action Replevin. is for damages for the unlawful taking, and as we have seen, it lies only against the original wrong-doer (j) ; it is therefore strictly personal (k). In replevin how (g) Com. Dig. Pleader, 2 W. Q. B. 859; see ante, pp. 8, 11. 52, 2 X. 12; Phillips v. Jones, 15 (h) Thesaurus Brevium, 48, 89, 90; 3 Black. Comm. 413; Tidd's Specific Practical Forms, 357. A court of equity would order a chattel to be delivery up of specifically delivered up to its owner, if it were of such peculiar value a chattel in to him that the recovery of damages would be a manifestly inadequate equity. compensation for its loss, or if the person who wrongfully withheld it stood in a fiduciary relation (as trustee, agent, or otherwise) to its owner. The remedy for contempt of such an order was by process of contempt against the person who disobeyed it, viz. :-by the attachment and imprisonment of his person and the sequestration of his property. See Duke of Somerset v. Cookson, 3 P. W. 389; 1 White & Tudor L. C. Eq. 962, 6th ed.; Fells v. Read, 3 Ves. 70; Wood v. Rowcliffe, 2 Ph. 383; Dowling v. Betjemann, 2 J. & H. 544; Fothergill v. Rowland, L. R. 17 Eq. 132; Gilbert, Forum Romanum, 84-86; 1 Spence, Eq. Jur. 391; Dan. Ch. Pr. 891, 892, 903 et seq., 5th ed. (i) In such a case, if the goods cannot be found, the defendant may be distrained by all his lands and chattels till he deliver them, or the plaintiff may, at his option, have execution for their value. See stats. 17 & 18 Vict. 125, s. 78, repealed by 46 & 47 Vict. c. 49, s. 2 (see s. 5); 38 & 39 Vict. c. 77, s. 17; Rules of the Supreme Court, 1883, Order XLII. . 6, Order XLVIII. App. H, Nos. 10, 11; County Court Rules, 1889, Order XXV. rr. 50, 51, App., forms Nos. 249-255; Winfield v. Boothroyd, 34 W. R. 501. Under stat. 56 & 57 Vict. (j) Ante, p. 14. (k) See Mirror, c. 2, s. 26; Eaton v. Southby, Willes, 131, 134; 1 Tidd's Practice, 5, 9th ed. The present practice in actions for the recovery of goods. ever, specific restitution of the goods taken forms part of the mesne process (1). But the process so given was imperfect; for if the goods taken had been eloigned, that is, removed out of the county and therefore beyond the sheriff's jurisdiction, the law gave no further process against the goods themselves (m). And it is of course obvious that, in replevin as well as in detinue, the destruction of the goods might always render their restitution impossible. Thus, in actions for the recovery of goods, there was no process which could ensure their restitution at all hazards; there was no certainty of recovering aught but damages. For this reason, it seems, such actions were classed as personal (n); and goods were named personal things after them (o). The Common Law Procedure Act, 1852 (p), abolished the fictitious statement of the loss and finding of the goods in trover, and of the delivery or finding of the goods in detinue (q); and introduced simple statements of the cause of action in the place of the former pleadings relying on the old forms of action. Under the present practice, which has prevailed since the Judicature Acts took effect in 1875, every action is commenced with a writ of summons indorsed with a statement of (1) Ante, p. 17. (m) In such a case the plaintiff's only remedy was to have goods of the defendant to the same value taken in withernam, that is, by way of reprisal, or, if the defendant had no goods that could be taken in withernam, to set in motion process for his arrest and outlawry. See Bract. fo. 157; Britt. liv. i. ch. 28, § 3; Bro. Abr. Replevin, pl. 4; F. N. B. 68 G. 73 E. 74 C. D.; Gilbert on Distress and Replevin, 101, 108, 110, 115, 4th ed. (n) Bract. fo. 102 b; see an article by the present writer in the Law Quarterly Review, vol. iv. p. 394. (0) Although in modern times chattels real are included in personal estate, it does not appear that they were ever included in the term personal things, which was of earlier origin. A lease for years, before it was settled to be personal and not real estate, was regarded rather as a real thing than a personal thing. See Williams, R. P. 24, 25, n. (ƒ), 28, n. (x), 17th ed. (p) Stat. 15 & 16 Vict. c. 76, ss. 49, 222, and Schedule B. (9) Ante, pp. 16, 17. the nature of the claim made; the forms of indorsement in use are concise and simple; formal errors may be easily amended; and the test of obtaining relief is, whether the suitor has a good cause of action (r). Claims for the recovery of goods, or their value, are therefore no longer precisely formulated in detinue, trespass or trover (8). of chattels Hitherto we have been considering the remedies of Recovery an owner deprived of chattels, of which he had posses- bailed. sion himself. Let us now briefly advert to the case of a bailment (t) of the chattels, and suppose that the goods have been taken away from the bailee by a stranger and are withheld either by the taker, or some other. In such a case the bailee is and has always been entitled, in respect of his possession of the goods, to use all the remedies given by law to protect the owner's possession or right to possession (u). As early as 1375, the bailor was allowed to bring trespass against a stranger, who took the goods out of the bailee's possession, as if his own possession had been violated (x). But the bailor could not bring trespass against one, to whom his bailee had delivered the goods, or against a second taker, for neither of these directly and forcibly violated the possession, in respect of which the bailor was entitled to sue (y). In later times the bailor could (r) See stat. 36 & 37 Vict. c. 66, s. 24 (7); Rules of the Supreme Court, 1883, Orders II. IT. 1-3, XXVIII. r. 1, and Appx. A. Pt. III.; Companhia de Mocambique v. British South Africa Co., 1892, 2 Q. B. 358, reversed 1893, A. C. 602. (s) See Joseph v. Lyons, 15 Q. B. D. 280, 283; Hallas v. Kobinson, ib. 288. As to replevin, see ante, p. 13, n. (r). (t) Ante, p. 11. () A bailee might bring trespass; Y. B. 48 Edw. III. 20, pl. 8 11 Hen. IV. 24 b; re plevin; Y. B. 11 Hen. IV. 17, (x) Y. B. 48 Edw. III. 20, pl. a, (y) Needham, J., Y. B. 2 Edw. make use of the actions of detinue and trover (z), and so recover from any person, who wrongfully withheld the goods, even though he were a second trespasser or had obtained the goods with the bailee's privity (a). In modern times, however, the bailor's right to sue for the recovery of his goods is limited to those cases of bailment in which he is entitled to resume possession of his goods at will; as upon a deposit for safe custody or gratuitous loan. And if the owner has contracted to give the bailee exclusive possession of his goods, as upon a hiring or pledge, his right to recover the goods from strangers wrongfully possessed of them is suspended during the continuance of the bailment (b). But when a bailment of any kind is determined, the owner may sue to recover his goods or their value from any person, to whose hands they may have come, as well as from the bailee. For in modern law, the fact that the owner voluntarily parted with the possession of the goods in the first instance, by delivering them to the bailee, is no bar to his recovery of the goods from strangers, so soon as he has become entitled to have the goods returned into his possession (c). Under the present Factors Act (d), however, there are four cases of bailment in which the bailor may lose his title to recover the chattels bailed in consequence of a disposition of them made without his consent by the bailee (e). (z) Manders v. Williams, 4 Ex. 339, 344. (a) See ante, pp. 16, 17. (b) Gordon v. Harper, 7 T. R. 9. In Y. B. 22 Edw. IV. 10, pl. 29, it was held that the hirer of goods is entitled to the exclusive possession of them for the term of the hiring. (c) Wilkinson v. King, 2 Camp. 335; Loeschman v. Machin, 2 Stark. 311; Dyer v. Pearson, 3 (d) Stat. 52 & 53 Vict. c. 45, consolidating and amending previous Acts of 1824, 1826, 1842, and 1877. 'mercantile agent" (i.e., one (e) 1. Where the owner entrusts a having in the customary course of his business authority to sell, consign for sale, buy or borrow on goods) with the possession of his goods, |