from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
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.
500.
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.