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Dating back to the twelfth century, detinue is one of the oldest forms of action in common law, along with the action of debt—a lawsuit for a specific sum of money owed. In detinue a favorable judgment awarded the plaintiff the actual chattels—items of personal property—or their value in money. For example, an action of detinue was available against someone who wrongfully refused to return goods that were held subject to a Bailment, such as a deposit for safekeeping or repair. It could be used against an executor who refused to turn over a deed for the deceased person's property to the proper heir. Since the plaintiff did not have to show wrongful detention to prove his or her case, the action was appropriate for recovering goods from a thief as well as from someone who first acquired the property lawfully.
There were several drawbacks in an action of detinue. The defendant could prove his or her case by Wager of Law, for example. That meant that the defendant could swear in open court and bring along eleven neighbors who would take an oath that they, in good conscience, believed the defendant was telling the truth. If the plaintiff won the case, the defendant was required only to give up the items in question. This was small comfort when the goods were damaged or spoiled, since there was no remedy at detinue for harm done to the property while it was in the hands of the defendant. By the fifteenth century, plaintiffs were able to use the more satisfactory form of action on the case, and in the sixteenth century a special kind of action on the case, called Trover, was introduced. After that, these forms were used much more often than detinue to recover personal property.
Today the action of detinue has been almost entirely superseded by statutes that streamline Civil Procedure, but the principles underlying the ancient Common Law form of action are still the foundation of modern actions for the recovery of personal property.
detinuea form of action in tort, now defunct, that allowed a bailor (see BAILMENT) to sue a bailee or a person entitled to possess a thing to sue a person in actual possession of it, giving the plaintiff the right to recover the thing or, in the event of a failure, to be able to return it through lack of care by the defendant, its value. The same right of action now exists as a form of conversion, which is itself a form of wrongful interference with goods.
DETINUE, remedies. The name of an action for the recovery of a personal
chattel in specie. 3 Bl. Com. 152; 3 Bouv. Inst. n. 3472; 1 J. J. Marsh.
2. This action may be considered, 1. With reference to the nature of the thing to be recovered. 2. The plaintiff's interest therein. 3. The injury. 4. The pleadings. 5. The judgment.
3.-1. The goods which it is sought to recover, must be capable of being distinguished from all others, as a particular horse, a cow, &c., but not for a bushel of grain. Com. Dig. Detinue, B, C; 2 Bl. Com. 152; Co. Litt. 286 b; Bro. Det. 51. Detinue cannot be maintained where the property sued for had ceased to exist when the suit was commenced. 2 Dana, 332. See 5 Stew. & Port. 123; 1 Ala. R. 203.
4.-2. To support this action, the plaintiff must have a right to immediate possession, although he never had actual possession; a reversioner cannot, therefore, maintain it. A bailee, who has only a special property, may nevertheless support it when he delivered the goods to the defendant, or they were taken out of the bailee's custody. 2 Saund. 47, b, c, d Bro. Ab. h.t.; 9 Leigh, R. 158; 1 How. Miss. R. 315; 5 How. Miss. R. 742; 4 B. Munr. 365.
5.-3. The gist of the action is the wrongful detainer, and not the original taking. The possession must have been acquired by the defendant by lawful means, as by delivery, bailment, or. finding, and not tortiously. Bro. Abr. ])et. 53, 36, 21 1 Misso. R. 749. But a demand is not requisite, except for the purpose of entitling the plaintiff to damages for the detention between the time of the demand and that of the commencement of the action. 1 Bibb, 186; 4 Bibb, 340; 1 Misso. 9; 3 Litt. 46.
6.-4. The plaintiff may declare upon a bailment or a trover; but the practice, by the ancient common law, was to allege, simply, that the goods came to the hands, &c., of the defendant without more. Bro. Abr. Det. 10, per Littleton; 33 H. VI. 27. The trover, or finding, when alleged, was not traversable, except when the defendant alleged delivery over of a chattel actually found to a third person, before action brought, in excuse of the detinue. Bro. Abr. Det. 1, 2. Nor is the bailment traversable, but the defendant must answer to the detinue. Bro. Abr. Det. 50-1. In describing the things demanded, much certainty is requisite, owing to the nature of the execution. A declaration for "a red cow with a white face," is not supported by proof that the cow was a yellow. or sorrel cow. 1 Scam. R. 206. The general issue is non detinet, and under it special matter may be given in evidence. Co. Litt. 283.
7.-5. In this action the defendant frequently prayed garnishment of a third person, whom he alleged owned or had an interest in the thing demanded; but this he could not do without confessing the possession of the thing demanded, and made privity of bailment. Bro. Abr. Garnishment, 1; Interpleader, 3. If the prayer of garnishment was allowed, a sci. fac. issued against the person named as garnishee. If he made default, the plaintiff recovered against, the defendant the chattel demanded, but no damages. If the garnishee appeared and the plaintiff made default, the garnishee recovered. If both appeared, and the plaintiff recovered; he had judgment against the defendant for the chattel demanded, and a distringas in execution and against the garnishee a judgment for damages, and a fi. fa. in execution. The verdict and judgment must be such, that a special remedy may be had for the recovery of the goods detained, or a satisfaction in value for each parcel, in case they, or either of them, cannot be returned. Walker, R. 538 7 Ala. R. 189; 4 Yerg. R. 570 4 Monr. 59; 7 Ala. R., 807.; 5 Miss. R. 489; 6 Monr. 52 4 Dana, 58; 3 B. Munr. 313; 2 Humph. 59. The judgment is in the alternative, that the plaintiff recover the goods or the value thereof, if he cannot have the goods themselves, and his damages. Bro. Abr. Det. 48, 26, 3, 25; 4 Dana, R. 58; 2 Humph. 59; 3 B. Mont. 313, for the detention and full costs. Vide, generally, 1 Chit. Pl. 117; 3 Bl. Com. 152; 2 Reeve's Hist. C. L. 261, 333, 336; 3 Id. 66, 74; Bull. N. P. 50. This action has yielded to the more practical and less technical action of trover. 3 Bl. Com. 152.