detinue
n . 非法占有
非法占有
Detinue \
Det "
i *
nue \ (?;
277 ),
n . [
OF .
detinu ,
detenu ,
p .
p .
of detenir to detain .
See {
Detain }.]
A person or thing detained ; (
Law )
A form of action for the recovery of a personal chattel wrongfully detained .
[
1913 Webster ]
{
Writ of detinue } (
Law ),
one that lies against him who wrongfully detains goods or chattels delivered to him ,
or in possession ,
to recover the thing itself ,
or its value and damages ,
from the detainer .
It is now in a great measure superseded by other remedies .
[
1913 Webster ]
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 .
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