As this action proceeds on the ground of property in the plaintiff, at the time of action brought, it cannot be maintained, if the defendant took the goods tortiously; for by the trespass, the property of the plaintiff is divested (3). Hence, also, if a person detain the goods of a feme co vert, which came to his hands before the marriage, the husband alone must bring the action; because the property is in him at the time of the action brought. Property in the plaintiff, without ever having had possession, is sufficient: Hence an heir may maintain detinue for an heir loome. So if it be enacted by a statute, that goods imported in any other manner than as therein directed, shall be forfeited, one moiety to the king, and the other moiety to him who will inform, seize, or sue for them: a subject may have detinue for the moiety of goods imported contrary to the provisions of the statute; for by the illegal importation the property is divested out of the owners, and by bringing the action it is vested in the plaintiff, by relation, from the time of the offence committed (4). So if I. deliver goods to A., to deliver to B., B. may have. detinue; for the property is vested in him by the delivery to his use. The goods demanded must be such as can be distinguished from other property, by certain discriminating marks; as money in a bagh; a horse; a cow'; a piece of gold value c 6 H. 7. 9. a. Bro. Abr. Detinue, pl. 53. per Brian C. J. may have replevin, pl. 36. d Bull. N. P. 50. e Bro. Abr. Detiuue, pl. 30. t. v. Withered, 5 Mod. 193. 12 Mod, 92. Salk: 223. S. C. g 1 Rol. Abr. 606. (C) pl. 1. 1 Inst. 286 b. 1. Rol. Abr. 606. (A) pl. 1. f See stat. 12 Car. 2. c. 18. Roberts q. i F. N. B. 322. (A) ed. 4to. (3) This position is cited in Com. Dig. and other books; but the opinion of Vavasor J. to the contrary, in the same case, seems to be better founded. See the reasoning of Anderson and Warburton Js. in Bishop v. Montague, Cro. Eliz. 824. to the same effect, but applied to the action of trover. (4) This case was recognized in Wilkins v. Despard, 5 T. R. 112. where it was holden, that if a ship be seized as forfeited under the navigation act (12 Car. 2. c. 18.) by a governor of a foreign country under the dominion of Great Britain, the owner cannot maintain trespass against the governor, although there has not been any sentence of condemnation; because the forfeiture is complete by the seizure, and the property is thereby divested out of the owner. RR twenty-one shillings; deeds concerning the inheritance of the plaintiff's land, if he can describe what they are, and what land they concern'; or if such deeds are in a chest; and the like. But, for money (not in a bag or chest) or corn", and other things which cannot be distinguished from property of the same kind or description, detinue will not lie. The gist of the action being the detainer, it is necessary, that the defendant should be in possession of the goods. Hence, if the bailee of goods die, detinue will not lie. against his personal representative, unless he takes possession of the goodsP (5). But if, after the death of the bailee, a stranger takes the goods, detinue lies against such stranger. If goods be delivered to husband and wife, detinue ought to be brought against the husband only'. But if they are delivered to the wife before marriage, the action must be brought against husband and wife'. From the preceding cases it may be collected, that the grounds of the action of detinue are, 1. A property in the plaintiff, either absolute or special, (at the time of action brought) in personal goods, which are capable of being ascertained. 2. A possession in the defendant by bailment, finding, &c. 3. An unjust detention on the part of the defendant. II. Of the Pleadings and Evidence. THE manner in which the goods came into the possession of the defendant is matter of inducement only; hence, if the plaintiff declares on a bailment, the defendant cannot plead that the plaintiff did not bail the goods; for the bailment is not traversablet. So where the plaintiff de clared, that the goods came to the hands of the defendant by finding", and the evidence was, that the plaintiff had (5) Executors are chargeable in this action, on the ground of possession only. Bro. Abr. Detinue de biens, pl. 19. If there are three executors, and one hath possession, detinue lies against him only. Ib. delivered the goods to the defendant (an infant) for a special purpose, and the defendant refused to re-deliver them; it was holden, that the evidence supported the declaration. If the action be brought for several articles, it is not necessary to set forth the separate value of each in the declaration; it is sufficient if the jury sever the values by their verdict. The plaintiff must prove the detainer of the goods precisely as laid in the declaration. Hence, in detinue for a bond for 1007. upon bailment, if defendant plead, that he did not receive a bond for such sum, and it is found, that he received a bond for a greater sum, there must be a verdict for the defendant; because the bond is not the same as that which the plaintiff demands. The general issue in this action is non detinet, or that the defendant does not detain the goods in question. Upon this issue, the defendant cannot give in evidence, that the goods were pawned to him for money which has not been paid, for such matter ought to be pleaded specially; but he may give in evidence a gift from the plaintiff; for this proves, that he does not detain the plaintiff's goods. III. Of the Judgment. THE form of the judgment in this action is, that the plaintiff do recover the goods in question, or the value thereof, if the plaintiff cannot have the goods, and his damages; that is, damages for the detention (6). The language of the judgment being in the alternative, that the plaintiff do recover the goods, or the value thereof, it is incumbent on the jury to find the value (7), and an omission in this respect cannot be supplied by a writ of inquiry of damages. x Pawly v. Holly, 2 Bl. R. 853. a Townsend's 1st. Book of Judgments, b Per Coke, in Cheyney's case, 10 Rep. 119. b. recognized by Holt C. J. in Herbert v. Waters, Salk. 206. where he said, that he thought that a contrary determination in Burton v. Robinson, Sir T. Raym. 124. and 1 Sid, 246. was not law. (6) The judgment in trover is, "that the plaintiff do recover his damages." "Knight v. Bourne, Cro. Eliz. 116. (7) If several things are demanded, the jury ought to find the value of each particular thing. East. T. 3 H. 6. 43. a. CHAP. XVII. DISTRESS. I. Of the Nature and Origin of a Distress. II. Of the Causes for which a Distress may be taken. III. Of the Things which may, and the Things which may not be distrained. V. Of the Time at which a Distress may be taken. VI. Of the Place where a Distress may be taken. VII. The Manner of disposing of Distresses, and herein of the Sale of Distresses for Rent Arreur. VIII. Of Pound Breach and Rescous. IX. Of abusing the Distress, and of Irregularity in the Proceedings by the Party distraining. I. Of the Nature and Origin of a Distress. THE power of distraining was given to the lord (in lieu of the forfeiture of the land) for the purpose of enforcing the tenant to perform those services, which were the consideration of his enjoyment of the land. Hence the distress was considered merely as a pledge, and the detention thereof was justifiable only so long as the duties incident to the tenure remained undischarged. If the tenant offered gages and pledges for the performance of the services, and the lord, after such offer, persisted in detaining the distress, the tenant might sue out a writ of replevin, the tenor of which was, that the defendant had taken and unjustly detained the goods," against gages and pledges." This form is still preserved in the proceedings in replevin, but the offer of gages and pledges has fallen into disuse. The replevin was considered as so much a matter of right, that if a person by deed granted a rent with a clause of distress, and granted further, that the distresses taken should be irreplevisable, yet they might be replevied, such a restriction being against the nature of a distress". II. Of the Causes for which a Distress may be taken. 1. At common Law.-A distress may be taken for the nonperformance of services, either certain or such as may be reduced to certainty, viz. heriot-service, rent-service, suitservice, that is, suit to a hundred court, or court baron; for non-payment of a fine imposed on an inhabitant of a manor, by the steward of a court leet, for refusing to take the customary oath, when elected to the office of a constablef; for non-payment of an amerciament in a court leet, for a nuisances, or for an offence done in court; lastly, at common law, goods or cattle damage feasant may be distrained. 2. By Prescription.-By prescription, a distress may be taken for an amerciament in a court baronk; for a penalty imposed for a breach of a bye-law; for a toll in a fairm (1). -- 3. By Statute. It would be an endless task to enumerate all the statutes which give a remedy by distress; the following, however, cannot be passed over in silence: By stat. 4 Geo. 2. c. 28. s. 5. "Every person, body poli"tic and corporate, may have the like remedy by distress, "and by impounding and selling the same, in cases of rent"seck (2), rents of assize, and chief rents, which have been (1) A distress may be taken, where the custom warrants it, for an amerciament, or fine imposed by the steward of a court baron. Co. Ent. tit. Replevin, pl. 1. (2) N. There cannot be a rent-seck issuing out of a term for years. Hence, if a lessee for years assign his term, reserving to himself a rent, he cannot enforce the payment of such rent by distress; because a rent so reserved was not distrainable for at com |