attested by one witness only, it will be demurrable a. assignment is not by deed, a profert is unnecessary b. As the SECTION XIV. THE PLEADINGS. A PLEA of non est factum puts in issue the execution of the bond only; but under this plea the defendant may shew that the bond was void c. The defendant may plead that no process issued against the principal, or that the debt was levied on the principal since the commencement of the action. So in an action by the assignee of the sheriff the defendant may plead that the bond was not assigned according to the statute o. It is a good plea that no affidavit of debt was made; though a plea that no affidavit of debt was filed &; or that no proper affidavit had been made 1, is bad. The practice of the court, unless it goes to the merits of the defence, cannot be pleadedi. The defendant cannot plead that the cause was out of court for want of a declaration before the assignment of the bond was taken k; nor can matters of defence in equity, or merely founded on the discretion of the court, be pleaded1; as that the action was brought for the benefit of, or as trustees for, the sheriff's officer m. * Neat r. Mills, Fort. 371. Willes, 409. R. Lease v. Box, supra. * See ante, 695. On the plea of non est factum, the bail may be admitted to prove circumstances rendering the bond illegal; as that it was executed after the return, or shewing that the party bailed never was in the country or heard of the writ, and that the bail was imposed upon; but under this plea it cannot be objected that the sheriff returned non est inventus after taking but before assigning the bond. Per Littledale, J., in Taylor v. Clow, I B. & Ad. 220. The allegation of arrest is not traversable by the bail. Id. 3 Ch. Pl. 866. Non est factum. Comperuit ad diem. The defendant may plead that bail above was perfected in due time according to the conditions of the bond. Before the uniformity of process act, it was a good plea that the principal appeared, according to the condition of the bond or exigency of the writ, which was technically termed comperuit ad diem. But we have seen that the render of the principal, or his return into custody within the eight days, will not now discharge the bond, the condition of which is that bail should be put in Taken for above. It is a good plea that the bond was taken for ease and favour after the time limited for putting in special bail; and to this plea, if the action be at the suit of the sheriff, he should pray an enrolment of the bond, and after setting it out state that he was sheriff, the defendant's arrest, that the bond was made to him as sheriff, and traverse the ease and favour. If the action be at the suit of the assignee, the replication should state that the bond was duly executed, and denying the ease and favour, conclude to the country c. ease and favour. 3 Ante, 773. See 3 Ch. Pl. 8. b Abney v. White, Carth. 301. 2 Saund. 60. Lenthall v. Cooke, 1 Lev. 254. 1 Saund. 163. CHAPTER IX. DETINUE. Ax action of detinue lies for the recovery of a specific chattel, or the value of it, and also damages for the detention; it cannot be brought for the recovery of real property of any description; the thing for which it is brought must be clearly distinguishable from other property by certain discriminating marks, so that if the plaintiff recovers the sheriff may be able to deliver it to him. Thus it lies for a horse, a cow, a piece of gold, money in a bag, title deeds, or any chattel the identity of which can be ascertained; but it does not lie for money or corn not in a bag, or other things which cannot be distinguishably marked *. When delie. tinue will sue in de In order to sustain this action, the plaintiff must have an ab- Who may solute or special property in the chattel for which it is brought, tinue. and a right to the immediate possession at the time when the action is commenced. Therefore, where the plaintiff deposited with the defendant the title deeds of his estate, and afterwards conveyed the estate to his son, it was held that he could not maintain detinue for the deeds, for they went along with the estate, and he was not entitled to the possession of them b. But it is not necessary that the chattel should have been previously in the actual possession of the plaintiff. Therefore an heir may maintain detinue for an heirloom; and if goods be delivered to A. to deliver to B., the latter may maintain this action, the property being vested in him by the delivery to his use. If a man detain the goods of a feme covert which came to his hands before her marriage, the husband alone must bring this action, because the property is in him alone at the time the 3 Bl. Com. 151. Co. Lit. 286. .Com. Dig. Detinue (B.) Phillips v. Robinson, 4 Bing. 106. See Land v. North, 4 Doug. 266. Gordon . Harper, 7 T. R. 9. Pain v. Whitaker, R. & M. 100. Com. Dig. Detinue A. 1 Bro. Who may be sued in detinue. action is commenced a. If A., without the authority of B., pledges his property with C., B. may maintain detinue against A. and C. jointly ". If a statute prohibits goods under pain of forfeiture, one part to the king and another to him who shall inform, seize, or sue for the same, any person may bring detinue for the goods, for bringing the action vests a property in him c. The gist of this action is the wrongful detainer and not the original taking d. It is said that it cannot be maintained where the defendant has taken the goods tortiously, as the property is thereby divested, and consequently not vested in the plaintiff at the commencement of the action. If goods be delivered to the husband and wife, the action must be brought against the husband only f; but if delivered to the wife before her marriage, it should be brought against the husband and wife jointly for the detention before marriage. If A. delivers goods to B., who loses them, and C. finds them and delivers them to D., who has a right to them, A. cannot maintain detinue against C., for C. is not privy to the delivery by A. This action cannot be supported against a person who never had possession of the chattels, and it is incumbent on the plaintiff to prove an actual possession of the goods by the defendant. Therefore detinue will not lie against the executor of a bailee who has destroyed the chattel; and if there be several executors, and one only has the possession, the action must be brought against him alone1. If upon demand upon the defendant for certain things, he says he has got them, and thereby induces the plaintiff to bring detinue against him, he is liable, although it does not appear that he had the general controlling power over the things". More certainty is required in the description of the chattels The declaration. in the declaration in this action than in troverb. In detinue upon a bond, a variance as to the sum will be material ©. But the value of several parcels need not be laid separately, though the jury should assess the value of each thing, for the judgment is to recover the thing itself or the value of it; an omission to find the value cannot be supplied by a writ of enquiry d. It is usual to state that the defendant acquired the goods by finding or on bailment; yet as the manner whereby he became possessed of them is a matter of inducement only, neither of these allegations is traversable; evidence of a wrongful detainer will be sufficient in either case e. To a count in detinue on the bailment of a promissory note, to be re-delivered on request, the defendant pleaded that the plaintiff had deposited the note with him to be kept as a pledge and security for the repayment of a loan of 50l.; held, on special demurrer, that the replication was good, and no departure. In case of a special bailment, the declaration should contain one count on the bailment, and allege a special requests. Debt and detinue may be joined in the same action h. By Reg. G., H. T. 4 W. IV., "The plea of non detinet shall Pleadings. 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 such plea." Every other defence, therefore, must be specially pleaded. The judgment in this action is that the plaintiff do recover Judgment. the goods or the value thereof, if he cannot have the goods * Hall v. White, 3 C. &. P. 136. 2 Saund. 74. b. C 3 B. N. P. 51. 2 Roll. Ab. 703. B. N. P. 51. Pawly v. Holly, 2 Bl. 853. Anderson v. Passman, 7 C. P. 193. In detinue for several things, the Court will not, on motion, assess the damages as to one article, and strike it out of the de claration on its being delivered up & Kettle v. Bromsall, Willes, 120. |