Detinue
No doubt,[weasel words] it was designed to avoid quarrels likely to cause a breach of the peace pending a settlement of the dispute about the right to possession.
In other words, the rule of law was beginning to replace that of local force of arms and personal conflict as the resolution of disputes over chattels.
It seems clear that originally the action of replevin lay simply where the question to be determined was that of wrongful distress.
During the fourteenth century, after some vacillation by judges, it was held that the plaintiff could elect which remedy he chose when the chattels had been distrained.
The 1856 case of Mennie v. Blake [11] gives what Harold Potter calls an admirable survey of the law of replevin.
Replevin arose out of the need of a turbulent society to discourage resort to self help and although for a long time primarily used in disputes about distress between landlord and tenant, it was gradually expanded to cover all cases of allegedly wrongful dispossession.
If the plaintiff wanted return of his chattel in specie, replevin was a more appropriate remedy than either trespass or trover in which only damages could be recovered.
During the seventeenth and eighteenth centuries the action of trover largely replaced trespass for wrongful distress.
[3]: 404 Replevin remains the modern action, albeit defined by statute, for recovery of chattels pending a decision of the right of possession.
[3]: 405 Manitoba Agricultural Credit Corp. v Heaman,[13] a 1990 Canadian case, the Manitoba Court of Appeal adopted the words of the 1875 Manitoba Administration of Justice Act as having "codified, but not changed, at least in substance the action of replevin" by saying, Whenever any goods, chattels, bonds, debentures, promissory notes, bills of exchange, books of account, papers, writings, valuable securities or other personal property or effects have been wrongfully distrained under circumstances in which by the law of England replevin might be made, the person so complaining of such distress as unlawful, may obtain a writ of replevin in the manner prescribed by this ActIn the 1899 case McGregor v McGregor,[14] British Columbia Supreme Court justice Irving wrote: An action of replevin may be brought (1) where goods have been wrongfully distrained or (2) where goods have been otherwise, i.e. otherwise than by distress, wrongfully taken or detained.
Our British Columbia replevin action, which is wider than the English, gives the right to replevy to the party who could maintain trespass or trover.
[15][3]: 405 The action lay for the unlawful detention of ascertained chattels at the instance of a person who was entitled to have possession.
The writ was a command to the defendant that he should deliver up to the plaintiff the chattels quae ei injuste detinet – "which he unlawfully withholds from him".
Holdsworth bases this on a case from Bracton's notebook[20] in which the plaintiff alleges that "William Nutach in the peace of God and of our Lord the King and of his bailiffs unjustly detains (injuste detinuit) from her three pigs which were lost to her."
Holdsworth deduces this case was the forerunner of the action in detinue, which also lay to recover a lost chattel.
Ames is of the opinion that this case represents not so much an action, but a formal demand made in court for the return of the chattel, which, if denied, could be followed by an appeal.
"[24] In 1410, both counsel agreed that an action of detinue lay whether the chattel was bailed or whether the defendant found it in the road.
The plea simply amounted to an assumption that the chattels had come into the hands of the defendant (devenerunt ad manus), and were wrongfully withheld from the plaintiff.
"[26][a] The action probably represents the development of a simpler form of pleading in which it was unnecessary to allege by what means the chattel had come into the defendant's hands.
[28] This was also true if the bailee dealt with the property in an improper manner as noted by Littleton in 1462: "I bail to you my cloak and you burn it, I will have a writ of trespass on the case against you (and not detinue).
[34][35] Even in the time of Bracton, there was pressure to change this arrangement and allow the bailor to bring an action directly against the third party.
[43][44] Even by Bracton's time, lawyers were becoming accustomed to the notion that bailees did not have an absolute liability for chattels bailed to their tending, assuming they used reasonable care or diligence in handling them.
In Bracton's text, there was the beginning of the notion that bailee had an action for loss, assuming he had some interest in the chattel beyond mere possession.
Spigurnel: If you had bailed to the lady thirty marks for safe custody while she was coverte for return to you when you should demand them, would she be now bound to answer?
By the end of Bracton's life and into the reign of Edward I, debt was confined to contract law, while detinue was concerned with the developing issues of personal property.
[53] Occasionally, the issue of a transporting agent, a bailee who was charged with moving chattels would open the wrapped packages and misappropriate the contents.
[55][56] In the United States, detinue is a possessory action having for its object the recovery of specific personal property and damages for its detention.
[57] At common law an action of detinue would lie for the recovery of specific personal property unlawfully detained, or its value, and for damages for its detention.
[62] Detinue is distinguished from common-law trover which is for the recovery of damages for the wrongful conversion of personal property.
^ a: "Halliday" is likely a figure of speech, an allusion to a 1355 case in which the defendant, Halyday, was deemed to have obtained items unimpeachably.
