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incertain, as where trespass is done by two, which rests only in damages, if the plaintiff recover against one, that judgment is a sufficient bar against the other; for transit in rem judicatam; the property of the goods is changed, so as he may not seize them again.-Broome v. Wooton, 3 Jac. 1. Yelv. 67.

Note, In general cases it is not allowed to bring the thing into court for which the action is brought; (Elliot v. Callow, M. 9 Ann. Salk. 597. Anon. 5 Geo. 1. Str. 142.) yet I have known it under particular circumstances, where the court would discountenance the action : (Everard v. Lathbury, Mich. 17 Geo. 2. K. B.) and it appears from Mr. Barnes's Notes that in the common pleas it has been often done.

The rule seems to be, that bona peritura and cumbrous goods shall not be permitted to be brought into court; but in other cases they may, upon an affidavit that they are in the same plight and condition as when taken. Fisher v. Prince, B. R. 1762. (a)

Where goods are cumbrous, the court will grant a rule to shew cause, why on the delivery of the goods to the plaintiff, and paying costs, proceedings should not be staid.—Cooke v. Holgate, C. B. T. 10 G. 9. Barnes, 281. Watts v. Phipps, B. R. East. 7 G. 3.(6)

(a) Vide S. C. nomine Esher v, Prince, B. R. 3 Burr. 1363. Et vide Cooke v. Holgate, Barnes 281. Roy den v. Batty, ib. 284. S. P. See also the note to Elliot v. Callow, sup.

(b) But where there are several parcels of goods, the ordinary way is to make an inventory of them, and prove property of goods mentioned in it, and demand and refusal of them.

CHAPTER III.

OF DETINUE. DETINUE lies for the recovery of goods in specie, and also for damages for the detainer, and it lies against a person who has them either by delivery or finding: (a) but as in this action the defendant may wage his law, trover is the action in more common use. (b):

I have

(a) Vide Kettle v. Bromfall, Willes, 118.

b) The principal grounds of this action are,' 1. À property in the plaintiff either absolute or special, (at the time the action brought) in personal goods capable to be dis

tinguished. 2. A possession in the defendant by bailment, finding, &c. 3. Au unjust detention by defendant.

But where 4. bargained and sold goods to B. on condition that the sale should be void, if A. should pay to

B. å

I have already taken notice, that the declaration in this action must contain more certainty than is necessary in trover; in most other respects it agrees with that action. (2 Rol. Abr. 703. pl. 11.) It may be brought by one having a special property; so, by one having a property without possession. (a) It will lie for a piece of gold, value twenty-one shillings; (b) for that is a demand of a thing certain : (9 Dant. 510.) but it will not lie for money out of a bag, (c) though in that case trover will, because in that action damages only are to be recovered.

And it has been said, that it would not lie for hawks, hounds, apes, or popinjays, or such like things which are fere nature, though made tame; yet trespass will lie in such case, because in that the plaintiff recovers only damages for the taking, and not the things themselves.Bro. Ab. tit. Detinue, 44.

If a man detain the goods of a feme covert, which came to his hands before the marriage, the husband can only bring detinue ; because the law transfers the property to him, and the detainer is the cause of action. (d) But in such case the wife might join in an action of trover, because the inception of the cause of action was in her by the trover.Drew v. Bayly, E. 26 Car. II. 2 Lev. 101.

If A. deliver goods to B. to deliver to C., C. may bring detinue against B. for the property is vested in him by the delivery to his use. (e) So if a man deliver goods to B. and after grant them to C. the grantee may have detinue, but not the grantor.-- 1 Rol. Abr. 606. (C) pl. 1.

If the bailee of a thing burn it, his executor shall not be charged in detinue, because he shall not be charged without a possession in himself ; for the action dies with the person.—1 Rol. Abr. 607.

B. a certain sum at a day fixed. If chest. Banks v. Whetstone, Mo. 4. pays the money he may have de. 394. tinue for the goods, though they · (c) Or for a chest of corn, and came to his hands by bargain and such other things as cannot be dissale, and not by bailment. Bateman linguished from chaltels of the same v. Elman, Cro. Eliz. 866.

description. 1 Inst. 286. (a) Therefore an heir may recover (d) But where the defendant has an heir-loon in detinue. Bro. Ab. tit. tortiously taken the plaintiff's goods, Detinue, pl. 30.

he cannot maintain this action, for it b) Or for money in a bag. 1 Rol. proceeds on the ground that the Ab. 606. (A) pl. 1. or for a horse or plaintiff had a property in them at a cow. F. N. B. 138. Or for deeds the time the action brought, which concerning the inheritance of plain property is divested by the trespass. tiff's land if he can describe them, Per Brian, C. J. 6 Hen. VII. 9 (a.) and what land they concern. 1 Inst. Bro. Ab. tit. Detinue, pl. 53. 286. Or if such deeds are in a (e) Vide 2 Danu.511, post, p. 51.

Where

Where a man comes to a shop to buy goods, and they agree upon a price, and a day of payment, and the buyer takes them away, detinue will not lie; because the property was changed by a lawful bargain ; but if they agree for present money, and the buyer take the goods away without payment, detinue lies, because the property is not altered. (Bateman v. Elman, M. 1601. Cro. Eliz. 867.) So if a man sell goods on payment of money on a day to come, and the money be paid, and the goods not delivered, detinue lies, because the property is in the buyer ; but earnest does not alter the property, but only binds the bargain ; (Anon. M. 11 W. 3. 12 Mod. 345.) and therefore if no other time for payment be appointed, the money must be paid on fetching away the goods : the earnest gives the party a right to demand; but a

bare demand without payment is void. After earnest the vendor cannot [*51 ] sell the goods to another, without a default * in the vendee ; and there

fore if the vendee do not come and pay, and take the goods, the vendor ought to request him; and then, if he do not in convenient time, the agreement is dissolved, and the vendur at liberty to sell to another person.- Langfort v. Tiler's Administratix, E. 3 Ann. Salk. 113.

By the act of navigation, certain goods are prohibited under pain of forfeiting them, one part to the king, another to him that will inform, seize or sue for the same; any person may bring detinue for such goods; for the bringing of the action vests a property in bim.- Roberts, q. t. v. Withered or Witherall, E. 1696. 5 Mod. 193. 12 Mod. 92. Salk. 223. (a)

If I deliver goods to B who loses them, and D. tind them, and deliver them to J.S. who has a right thereto, I cannot bring detinue against.D. because he is not privy to my delivery.2 Danv. 51).

The plaintiff must prove an actual possession in the defendant, and the detainer of the goods precisely as mentioned in the declaration; and therefore if detinue be brought for a bond, and it is proved to be for a greater or less sum, it is not sufficient.--. Rol. Ab. 703. Trial, pl. 11.

The gist of the action is the detainer: therefore if goods be delivered to baron and feme, the detinue shall be only against the baron ; (Isaac v.Clarke, H. 12 Jac. I. i Rol. Rep. 128. 38 Ed. III. 1. (n.) S. P.) but if

(a) This case was recognized in cannot maintain trover against the Wilkins v. Despard, 5 T. Rep. 112, governor, though there has not been where it was held, that if a ship be any sentence of condemnation, beseized as forfeited under the naviga- cause the forfeiture is complete by tion act (12 Car. 2.) c. 18. by a go- the seizure, and the property is vernor of a foreign country under the thereby divested out of the owner. dominion of Great Britain, the owner

goods

goods come to a feme covert before marriage, the action must be brought against ihe husband and wife.-Co, Lit. 551.(b) (a)

General Issue. If the defendant plead non detinet, he may give in evidence a gift by the plaintiff, for that proves he does not detain the plamtiff's goods; but he cannot give in evidence that the goods were delivered as a pledge, &c. as he inight in trover.--Co. Lit. 289. (a)

In detinue for a deed, the defendant after a general imparlance, proferendo hic in cur’ the said deed, pleaded that it was delivered to him by the plaintiff and J. S. ad custodiend' sub certis conditionibus, et quod ipse paratus est ad deliberand' cui vel quibus cur' considerarit, &c. Sed utrum conditiones illæ ex parte prædicti querentis adimpletæ sunt ipse omnino ignorat et petit quod idem J. S. præmuniatur.- The plaintiff demurred; but the court held, a prayer of garnishment may be after an imparlance, ideo preceptum est ric' quod per probos homines, 8c. Sci fa. quod sit hic, 8c.--Hancock v. Baddy, E. 28 Car. 2.

The judgment in this action is to recover the thing itself, or the value thereof, (b) therefore the jury must find the value; and if they find damages and costs, and no value, it shall not be supplied by a writ of enquiry.--Cheney's Case, M. 1612. 10 Co. 119. (c)

The jury ought to find the value of every particular thing demanded; but a flock of sheep is intire, 8c.-Ibid.(d)

der.

(a) Formeriy a man on an affida- bail the goods, for the bailment is not vit filed mighi be held to bail in traversable, and the manner in which detinue, but he cannot by the mo- they came into defendani's possession dern practice without a judge's or- is nicre matter of inducement. Bru.

Per Reg. Gen. Cur. B. R. H. Ab. tit. Detinue, pl. 50. 1808. 9 East, 325.

So where plaintiff declared that (b) Besides the plaintiff's damages the goods came to defendant's hands for the detention. Peter v. Hay- by tinding, and the evidence was ward, Cro. Jac. 681. but in trover it that plaintif bad delivered the goods is for his damages only. Knight v. to defendant (an infant) for a spe• Bourne, Cro. Eliz. 116.

cial purpose, and he refused to re(c) This case was recognized by deliver them. This was held sultiHolt, C. J. in Herbert v. Waters, cient to sustain the action. Mills v. Salk. 205. denying a contra decision Graham, 1 Bos. and Pull. N. R. 146. in Burton v. Robinson, T. Raym. 124. And whete detinue is brought for 1 Sid. 246.

several articles, the distinct value of rd) Furthermore, as to the pleud. cach need not be set forth in the deings and evidence in this action, it claration, for the jury may sover the has been held, that if the plaintiff values by their verdict. Pawley v. declares on a bailment, detendant Holly, 2 1:14. 853. cannot plead that plaintiff did not

CHAPTER

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CHAPTER IV.

OF REPLEVIN.

THE action of replevin is of two sorts. 1. In the detinet. 2. In the detinuit; and may be brought in any case where a man has had liis goods taken from him by another.(a)

Where the party has had his goods re-delivered to him by the sheriff, upon a writ of replevin, or upon a plaint levied before him (which by the statute of Marlbridge the sheriff, may take out of the county-court, and make replevin presently,) the action is in the detinuit; but where the sheriff has not made such teplevin, but the defendant still has the goods, the action is in the detinet :(6) however of late years, no action has been

brought

ra) Either by distress or other wisc; and it is not confined to a taking by distress alone, for the writ is founded on a taking, and the right of the party from whom the things are taken to have them restored to him, unless the question of title to the goods is determined. The per son who takes the goods may claim property in them, and if he do, the sheriff cannot deliver them till that question is tried; but this claim of property can only be made where there has been a taking, and it seems that the writ of replevin was calculated, in such cases, to supply the place of detinue or trover, and to prevent the party from whom the goods are taken being put to those actions, except in cases where the other could shew property. Per Redesuale, C. in Shannon v. Shannon, 1 Sch. and Lef. 327.

(b) This statute does not extend to hundred courts, which, deriving their authority' from the county court, cannot prescribe to grant replevins by plaint by the steward out of court, for at common law the she riff could only replevy by writ in his county court. Hallett v. Birt, Raym. 218. Under this statute, therefore, whether the replevin is by writ or plaint, the sheriff, before he executes

the one or grants the other, must take pledges, as well de proseguendo as de retorno habendo. Dorrington v. Edwin, 2 Show. 421. And if the proceedings are by plaint, and are removed by certiorari, and defendant has judgment, he may have a sci. fa. against the pledges. S.C. 3 Mod. 56.

The sheriff cannot take money or cattle as a pawn, in nature of pledges de retorno habendo, for the process to bring such pledges into court is by sci. fa. Moyser v. Gray, Cro. Car. 446. But for an account of this ancient mode of proceeding, see Mr. Serjeant Williams's ed.of Saund. vol.i. p. 195, (n. 3.) and Gilb. Replev. 242, 243, (ed. 1757.) The modern practice, however, is to proceed against the sheriff by action on the case for taking insufficient pledges at the suit of the person making cognizance, where there is no avowant on the record. Page v. Eamer, i Bos. and Pull. 378; and in such action the court of K. B. held that the plaintiff could not recover damages beyond the value of the distress, which was not equal to the rent in arrear. Y co v. Lethbridge, 4 T. Rep. 439. But in a similar action it was held in C. B. that the plaintiff might recover damages to the extent of his injury.

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