*CHAPTER IX.

DETINUE.

lie.

An action of detinue lies for the recovery of a specific chat- When detel, or the value of it, and also damages for the detention; it tinue will 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.

tinue.

In order to sustain this action, the plaintiff must have an Who may absolute or special property in the chattel for which it is brought, sue in deand 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. 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 *action is *782 commenced. 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.

3 Bl. Com. 151. Co. Lit. 286, b. Com. Dig. Detinue (B.)

Phillips v. Robinson, 4 Bing. 106. (13 Eng. C. L. 362.) See Land v. North, 4 Doug. 266. (26 Eng. C. L. 345.) Gordon v. Harper, 7 T. R. 9. Pain v. Whitaker, R. & M. 100. (21 Eng. C. L. 390.) See Atkinson v. Baker, 4 T. R. 229.

Com. Dig. Detinue A. 1 Bro. Ab. Detinue Pl. 30. See 2 Saund. 47, a. 1 Roll. Ab. 606.

B. N. P. 50. But it is otherwise in detinue for the charters of the wife's inheritance. 1 Roll. Ab. 606.

* Garth v. Howard, 5 C. & P. 346. (24 Eng. C. L. 353.) Tindal.

B. N. P. 51. Roberts, q. t. v. Withered, 5 Mod. 193. Salk. 223. Gledstane v. Hewett, 1 C. & J. 545.

detinue.

Who may The gist of this action is the wrongful detainer and not the be sued in original taking. 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; 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 alone."

If upon demand upon the defendant for certain things, he *783 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.i

The de- More certainty is required in the description of the chattels claration. in the declaration in this action than in trover. 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 inquiry.' 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. To a count in detinue on the bailment of a promissory note, to be re-delivered on request,

3 Bl. Com. 152. Co. Lit. 286, b.

m

3 Bl. Com. 152. Com. Dig. Detinue (D.) S. N. P. 657. But this doctrine is very questionable. See Com. Dig. Bien. (E.) Bro. Ab. Detinue, Pl. 19. Bishop v. Montague, Cro. Eliz. 824. And see 1 Ch Pl. 123. Kettle v. Bromsall, Willes, 120. B. N. P. 51. Id. Co. Litt. 351.

B. N. P. 51. 2 Danv. 511.

Anderson v. Passman, 7 C. & P. 193.
B. N. P. 50. Bro. Ab. Detinue, 19.

(32 Eng. C. L.)

h Id.

Hall v. White, 3 C. & P. 136. (14 Eng. C. L. 242.) j 2 Saund. 74, b.

3 B. N. P. 51. 2 Roll. Ab. 703.

B. N. P. 51. Pawley v. Holly, 2 Bl. 853. Anderson v. Passman, 7 C. & P. 193. (32 Eng. C. L.) În detinue for several things, the court will not, on motion, assess the damages as to one article, and strike it out of the declaration on its being delivered up to the plaintiff. Phillips v. Hayward, 1 Harr. & Woll. 108. 3 Dowl. 362. Mills v. Graham, 1 N. R. 140. Walker v. Jones, 2 C. & M. 672.

the defendant pleaded that the plaintiff had deposited the note with him to be kept as a pledge and security for the re-payment of a loan of 50/.; 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 request. Debt and detinue may be joined in the same action.

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 *themselves, together with damages for the detention, and full *784 costs; the jury therefore should assess the value of each article separately, to enable the plaintiff to recover the value of such articles as cannot be returned.d

Until recently this form of action was very seldom resorted to, because the defendant might wage his law; but, since 3 & 4 W. IV, c. 42, s. 13, whereby wager of law is abolished, it has come into more frequent use.

Gladstane v. Hewitt, 1 C. & J. 545.

Kettle v. Bromsall, Willes, 120. Mills v. Graham, 1 N. R. 145.
2 Saund. 117, b.

a
* Cheney's case, 10 Co. 119, b. See Herbert v. Waters, Salk. 286.

CHAPTER X.

DISTRESS.

I. Of the nature of distress and the causes for which it may be

IV. What things may, and what may not, be distrained.

V. In what place a distress should be made.

VI. In case of fraudulent removal.

PAGE

*786

SECTION I.

OF THE NATURE OF A DISTRESS, AND THE CAUSES FOR WHICH
IT MAY BE MADE.

DISTRESS is the taking of a personal chattel out of the possession of a wrong-doer into the hands of the party grieved, as a pledge for redressing an injury, the performance of a duty, or the satisfaction of a demand. By common right a distress may be made for the non-performance of services, as for neglecting to do suit to the lord's court, for heriot service, for amercements in a court leet, for cattle damage-feasant. So by common law, distresses were incident to every rent-service, and by particular reservation to rent-charges, but not to rentseck, till the statute 4 Geo. II, c. 28, extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them, so that it may be laid down as a general principle that distress may be taken for any kind of rent in arrear.b

*A remedy by distress is also provided, by various statutes, for penalties and the non-performance of duties, &c., which the limited design of this work will not permit to be more particularly noticed.

1 Rol. Ab. 665. 1 Inst. 96, a. 3 Bl. Com. 6.

A distress may be made for the whole rent reserved on furnished apartments, because in contemplation of law the rent issues out of the part of the demised premises which belongs to the realty. Newman v. Anderton, 2 N. R. 224. Although, generally, a distress cannot be made for a rent reserved on a letting of incorporeal hereditaments, as tithes, commons, or tolls. Co. Litt. 47, a.

demise at

a fixed

It has been stated that a distress may be taken for any kind There of rent in arrear; it may be remarked, however, that a distress must be a cannot be made unless there be an actual demise at a fixed ascertained rent.(1) Therefore, where a tenant held premises rent to auunder an agreement for a future lease, and no lease had been thorize a executed, or rent subsequently paid, it was held that the land- distress. lord could not distrain for rent, his remedy was by action for use and occupation. "There can be no distress," said Abbott, C. J., "unless there be a contract for an actual demise at a specific sum." So, where a lease of tithes and land was granted at an entire rent for both, and the lease as to the tithes was void, it not being under seal, it was held that a distress for the rent was unlawful, there being no distinct rent reserved on the land.b

from pay

lord to

Any act, however, of the tenant which amounts to a recog- A demise nition of a tenancy, and admits a liability to pay a certain rent, may be will enable the owner of the premises to distrain for rent in implied arrear, though there be no express demise. As where the ment of tenant occupied premises under an agreement for a lease, rent, so as which was not executed, and paid rent for two years; it was to enable held that he was liable to be distrained for arrears of rent due the landfor the third pear, at the rate previously paid, the quantum of distrain. rent not being otherwise ascertained. So, where a tenant who had entered the premises under an agreement for a lease, admitted a charge for half a year's rent in an account between him and his landlord; it was held that this constituted him a tenant from year to year, and liable to be distrained. But where a tenant entered under an agreement for a lease at a *787 certain rent, the landlord undertaking to complete certain buildings, and after an occupation of several years, on being called on for the rent, he said he was ready to pay upon the buildings being completed; it was held, that as no rent had been paid, a demise at a certain rent could not be implied, so as to entitle the landlord to distrain.

Dunk v. Hunter, 5 B. & A. 322. (7 Eng. C. L. 115.) Hagard v. Johnson, 2 Taunt. 148. See Neale v. Mackenzie, 1 Gale, 119. 2 C. M. & R. 84. Gardiner v. Williamson, 2 B. & Ad. 336. (22 Eng. C. L. 91.) Knight v. Bennett, 3 Bing. 361. (13 Eng. C. L. 8.) 11 Moore, 222.

Cox v. Bent, 5 Bing. 185. (15 Eng. C. L. 410.) 2 M. & P. 281.

Regnard v. Porter, 7 Bing. 451. (20 Eng. C L. 194.) 5 M. & P. 370. Where

(1) (Wells v. Hornish. 3 Penn. 30. Ege v. Ege, 5 Watts, 134. On a demise of a grist mill, the lessee to render one third of the toll, the lessor may distrain for the rent. Fry v. Jones, 2 Rawle, 11. Hoskins v. Rhodes, 1 Gill & Johns. 266. "If one hires a man to work his farm, and gives him a share of the produce, he is a cropper. He has no interest in the land, but receives his share as the price of his labor. The possession is still in the owner of the land, who alone can maintain trespass; nor can he distrain, for he does not maintain the relation of landlord and tenant, which is inseparable from the right of distress." Fry v. Jones, supra. An agreement between A. and B., that the latter shall raise a single crop on shares upon the land of A., does not amount to a lease of the land. Bishop v. Doty, 1 Verm. 37. Rent payable in advance may be distrained for. Beyer v. Fenstermacher, 2 Wharton, 95. And see Smith v. Shepard, 15 Pick. 147. Interest on rent cannot be distrained for. Denaison v. Lee, 6 Gill & Johns. 383.)

VOL. II.-5