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particulars of which cannot be included here, In most states the Fictitious Proceeding in

Ejectment has been wholly abolished, and such statutes usually provide that the action shall be brought in the name of the Real Claimant out of possession against the Ac-thai Tenant or occupant of the land. With the old Fictitious Allegations swept away, the Action has been converted into a simple and direct remedy for the assertion of Title to real property held adversely, and for the recovery of its possession. Thus, for exam­ple, in the State of Illinois, the Action of Ejectment was expressly retained by the Statute,M but Section 8 of the same statute provided that “The use of fictitious names of


57. Tyler, A Treatise on the R’~nedy by Eleetment and the Law of Adverse Enjoyment, c’s. XXXVI to XLV, pp. 611—837 (Albany, 1870).
54. Hurd’s Bev.St.1921, e. 45, §~ I--S (1921); Aetna Life Ins. Co. v. Hoppln, 255 IlL 115, 9~ N.E. 375

(1912).

It 36 & 37 VIctoria, c. 66, 8 Law Reports 306 (1873).

Sec. 118

ACTION OF EJEOTMENT

243


plaintiffs or defendants, and the names of any other than the Real Claimants and the Real Defendants, and the Statements of any Lease or Demise to the plaintiff, and of an

Ejectment by a Casual or Nominal Ejector, are hereby abolished.” And the same was true in Michigan and other states.59
In those states where a Statutory Form of Ejectment was adopted, as in Illinois, Michi­gan and New York, while the name was retained, the Mode of Procedure, and the cir­cumstances under which it would lie, were prescribed.60 It still remains true, however, that the rules and principles which for cen­tunes were applicable to and developed by the old Common Law Action of Eject­ment are, for most part, equally applicable to its Modem Statutory Counterpart, which, alter all, is merely an evolutionary develop­ment of its ancestor.
The situation was modified in most of the

Code States, in most of which it was provid­ed that a defendant might Plead as many Several Defenses as he had, whether Con­sistent or Inconsistent, or whether denom­inated Legal or Equitable. In such states a defendant may offer Proof of an Equitable Title against a Legal Title shown by a plain­tiff in an Action of Ejectment. And the same provision also prevails even in some states which failed to adopt the Code Form of Pro­cedure.
~ 3 Oomp.Laws Mich.1915, ~ 13168, 13169. fluE see Doe ex dem, Alabama State Land Co. v McCullough, 155 Ala. 240, 46 South 472 (1910); Doe ox dem. Townsend v. floe, 26 DeL 75, 80 AtI. 352 (1911).
60. Tyler, A Treatise on the Remedy by Ejectment and the Law of Adverse Enjoyment, c’s. XXXVI to XLV, pp. 611—837 (Albany, 1870).

Trespass for Mesne Profits

ORIGINALLY, the Action of Ejectment was an action for the recovery of Damages, not for recovery of the premises, and at that time the Mesne Profits were the measure of the Damages. But when it became estab­lished that the premises was recovered in

an Action of Ejectment, the Damages in the action were limited to Nominal Damages. And this was the development which created the necessity of what came to be known as the Action of Trespass for Mesne Profits.61 In some states this Form of Action is still the proper remedy. In certain states, however, by statute, the plaintiff was required to re­cover for Mesne Profits in the original action to recover the premises,62 whereas, in others, the provision was not mandatory.°3 An ex­ample of this type of statute, changing the Common Law Rule, may be found in Section 601 of the New York Real Property Actions and Proceedings Law, 1968, which contains the following provisions: “In an action to recover the possession of real property, the plaintiff may recover damages for withhold­ing the property, including the rents and prof­its or the value of the use and occupation of the property for a term not exceeding six years; but the damages shall not include the value of the use of any improvements made by the defendant or those under whom he claims.”
61. 000dtitle v. Tombs, 3 Wils.K.B, 118, 95 Eng.Rep.
965 (1770).
62. Provident Inst. for Say. v. Burnhaai, 128 Mass.
458 (1880).

63. 2 N.J.Comp.5t., 1910, p. 2063, 45; Va,Code, 1919,

§ 5481.


Sec.

CHAPTER 11
THE ACTION OF DETINUEt

119. Scope of the Action.

120. Detinue—Distinguished From and Concurrent with Other Actions.

121. Fonns of Declaration and Judgment in Detinue.

122. Declaration in Detinue—Bssential Allegations:

(1) In General,

123. Declaration in Detinue—Essential Allegations:

(2) The Plaintiff’s Right, Title, Interest or Possession.

124. Declaration in Detinue—Essential Allegations:

(3) The Unlawful Detention.

125. Declaration in Detinue—Essential Allegations:



(4) The Damages.

126. Status Under Modern Codes, Practice Acts and Rules of Court.

SCOPE OF TIlE ACTION
119. The Action of Detinue lies where It is sought to recover, not Damages for the taking or detention of a personal chattel, but the chat­tel itself, with Damages for its detention. The Judgment awards either recovery of the chat­tel itself, or its value, with Damages for its detention. To maintain the action—

(I) The chattel must be specific and capable of identification;



(II) The plaintiff must have either a Gen­eral or Special Property hi the chat­tel, or the Right to Immediate Pos­session;

(III) The defendant must be in the Actual Possession of the chattel at the time of Commencing Suit

THE action of Detinue is the only remedy



by suit at common law for the recovery of
I. In general on the history of the Action of Detinue, see:
Treatisest 2 Polloek and Maitland, flistory of English

Law, The Action of Detinue, Bk. II, c. IV, 7, 171— 174 (Cambridge 1895); Id., Book II, c. V, 204; Mar­tin, Civil Erceedure at Common Law, e. Ill, Detinue,

Art II, §~ 81—85, 74—IS (St. Paul 1905); 3 Street,

Foundations of Legal Liability, c. XII, Action of

Detinue, 144—158 (Northport 1906); jenks, Short

History of English Law, e. X, Detinne, 132—135

personal property in specie, except in those cases where the party can maintain Replev­in.2 In Trespass or Prover for wrongfully
(Boston 1913); Banbour, History of Contract in Early English Equity, ~. II, 25 (Oxford 1914), In Vinogradoff, Oxford Studies in Social and Legal History, Vol. 4, Pt. 1, C. II (Oxford 1914); Shipman, Handbook of Common Law Pleading, e. XI, The Action of Detinue, 46, 114—120 (3d ed. by Ballan­tine, St. Paul 1923); Morgan, The Study of Law, e. V, Detinue, 9ff—99 (2d ed. ChIcago 1948); Pluck­nett, A Concise History of the Common Law, DeE-tune, Bk. II, Pt. I, 345 (4th ed, London 1948); Potter, Historical Introduction to English Law, c. IV, Detinue, 893—397 (3d ed. London 1948); Fi­foot, History and Sources of English Law, c. 2, Detinuc, 24—43 (London 1949); Walsh, A History of Anglo-American Law, Bk. II, c. VI, § 56, 117—119 (2d

ed. Indianapolis (1932).



Decision: Darner. Dame, 43 Nil. 37(1561).

2. Alabama: Southern Hardware & Supply Co. v. Les­ter, 166 Ala. 86, 52 So. 328 (1910); Illinois: llobth­son v. Peterson, 40 Ill.App. 132 (1890); New flainp­shire: Dame v. Dame, 43 N.E. 37 (1861).
In some states detinue has been abolished, or the scope of replevin has been extended by statute so as to in-elude detinue. See the following cases: Michigan:

Corbitt v. Brong, 44 MIch. 150, 6 NW. 213 (1850);

Article: Ames, History of 271, 374 (1897), reprinted American Legal history,

Trover, 11 Ears-.LSCv. in 3 Essays on Anglo-417, 432 (Boston 1909).

244

Sec. 119


ACTION OF DETINUE

245

taking or detaining goods, or in Assumpsit for not delivering them, Damages only, and not the Specific Property, can be recovered. It seems that the action was originally deem­ed an action cx con tractu, but now the wrongful detention of the goods is consid­ered the Gist of the Action. The action lies without regard to any bailment or contract, and even though the defendant may have

wrongfully obtained possession in the first instance; and it is therefore more properly classed with Actions cx delicto, or with Pro­prietary Actions.3
West virginia: Young v. Edwards, 64 W.Va. 67, 60 SE. 992 (1908).
3. Gledstane V. HewItt, 1 Cromp. & 1 565, 148 Eng. Rep. 1548 (1831); Broadbent v. Ledward, Ii Adol. & E. 209, 113 Eng.Rep. 395 (1839).
The action of Detinue is, as we have seen, proprie­tary in character, and there has been some difficul­ty as to whether it should be classified as an Ca’ eontraotu or sa’ deticto form of action.
The right to join debt with detinue, I Saunders, The Law of Pleading and Evidence in Civil Actions, Detinue, 502 [434) (Philadelphia 1831), and to sue in detinue for not delivering the goods in pursu­ance of the terms of a bailment to the defendant, it is argued, seem to afford ground for considering it rather as a contract than as a tort action.
On the other hand, since dctinne lies, although the defendant wrongfully became the possessor thereof (of goods), in the first instance, without relation to any contract, it has recently been considered as a tort, The gist of the action is the wrongful detainer. and not the breach of the contract. Gledstane v. Hewitt, 1 Cromp~ & 1 565, 148 Eng.Rep. 1548 (1831); Wilkinson v. Verity, LII. C OP. 206 (1871); Bryant v. Herbert, 3 O.P.D. 389, 390, 391 (1878); Gossett v. Morrow, 187 Ala. 387, 65 So. 826 (1914); 2 Pollock and Maitland, History of English Law, Bk. Ii, c. IV, Ownership and Possession, 175, 170 (Cambridge 1895); MartIn, Civil Procedure at Com­mon Law, a III, Personal Actions, Ex Delicto, Art. II, Detinue, ~ 81—85, p. 75 (St. Paul 1905).
McKelvry, in his short work on Principles of Com­mon-Law Pleading, e. II, § 18, 11 (New York 1804). in discussing the problem of the proper classifica­tion of dctinue, declares: “In detinue this feature is not quite so apparent; in fact, the tendency has been to class the action with that of Trover. and to treat the detaining in the former action as a tor­tious act similar to the converting In the latter.

The Action of Detinue was for a long pe­riod the proper remedy of the bailor and


special or acquired right. For, while it is true that one person has the natural right not to have his property interfered with by another, and that wrongful detention is an Interference which would be a violation of this right, yet, viewed in this light, the wrongful act furnishes ground for an action of Trover, and not Detinuc. [Kettle v. Bromsall, Willes 120, 125 Eng.Rep. 1087 (1738), where the dis­tinction is noticed, and it is held that Trover and Detinue cannot be joined.]
“The same act may furnish grounds for an action of Detinue, but not unless it is viewed in another light, namely, as a detention of property which the defendant is under an obligation to deliver to the plaintiff, or in other words, a failure to perform a special obligation, a violation of a special right, which the plaintiff has acquired not by reason of his simple ownership of the property, hut by reason of the fact that there is a special relation between himself and the defendant, such as a bailment, and that owning or having the general right to the property which is lawfully in defendants posses­sion, he has asserted that right in such a wa3-—a g., by demand—as to acquire a special right to the im­mediate possession of the property, and to put up­on the defendant a special obligation to deliver it to him. It has already been seen that the judg­ment in the action of Detinue is for the recovery of the property or its value in the alternative. The special obligation to deliver the property, similar to an obligation based on a promise and arising be­cause of the special relation of the parties, is thus recognized and enforced. In fact, the action of Detinue has been brought upon a contract to deliv­er a specific chattel. [Fitaherbert, Natura Breviuni, p. 138]. It seems clear, therefore, tbat Detinue is properly classed with the actions of Debt, Covenant, and Assumpsit. [These forms of action are gener­ally distinguished by the term actions Cr oontroctr’, as distinguished from the actions known as Ca delictu, on the theory that the former are brought upon contract and the latter for a tort or wrong. The terms, however, are not strictly applicable, as the idea of contract in its usually understood sense does not necessarily enter into the action of Debt or that of Detinue, both of said actions many times being founded upon obligations arising from special relations between the parties other than contractual. Further, to say tbat an action is for a wrong, does not distinguish it, as every action is for a wrong. The writer submits that the true ba­sis of the distinction which undoubtedly does exist, is that the one class of actions is for wrongs which are violations of original or natural rights,—rights which belong to one person as ggainst all others; while the other class Is for wrongs which are yb-

“It is conceived that the true theory of the action of

detinue is that the detention is the violation of a

246


OFFENSIVE PLEADINGS

Ch. 11

was chiefly used in the field of bailment. When an owner bails or delivers a thing to another for any purpose, he has an action against the baflee for the return of the goods; but whether the action was based up­on ownership or upon contract was a distinc— tion not clearly drawn or perceived. Grad­ually the claim for a Specific Chattel was dis­tinguished from a Debt or Claim for a Cer­tain Quantity of Money, or of Corn or the Like. Roughly, this distinction may seem to correspond with that between contractual and proprietary rights.


Detinue in its modern form (theory) has come to be what we may term a Proprietary Action, a remedy to enforce a right of prop— erty. It carries into effect the right to the immediate possession of a particular thing. The restitution of the goods themselves wrongfully withheld makes it necessary, in this action of Detinue, to ascertain the thing detained, in such manner that it may be spe­cifically known and recovered. Therefore it cannot be brought for money, corn, or the like; for that cannot be known from other money or corn, unless it be in a bag or sack, for then it may be distinguishably marked, and unless the property is specified the duty enforced would be a mere debt or obligation.
latloas of special or acquired rights,—riglits which one person has against some other particular per­son or persons who have come into some special re­lation with him.)”
It was formerly urged by such a distinguished scholar as Dean Ames, that detinue originated out of the contract of bailment under which the defendant bailee was forced to deliver up specific chattels. Thereafter, the scope of the action was extended, so that it ceased to be based on a personal obligu­tboa and became based on a property right and wrongful detention. The view of Dean Ames has been brought In serious question by Professor Fi’ foot, In his excellent recent work on The History and sources of the Common Law, c. 2, Detinue, 24-’ 43 (London 1949).
See, also, on this problem, Whiteliead v. Harrison, 6 Q.E. (N.S.) 422, 115 Eng.Eep. 162 (1844); Wlard v. Semken, 2 App.D.O. 424 (1893),

There was a most serious imperfection in the remedy of Detinue, even where it exist­ed. Its Judgment was Conditional—that the plaintiff should recover from the defendant the said goods, or (if they cannot be had) their Value and the Damages for detaining them. This left to the defendant the choice between delivering up the thing and paying a sum of money, and if he would do neither the one nor the other, then goods of his were seized and sold, and the plaintiff in the end had to take money instead of the thing that he demanded.4


In modern times this defect has been cured, so that a plaintiff who recovers in Detinue gets a Judgment for the specific de­livery of the chattel detained. The action may now be used concurrently with Replev­in, Trover, and Trespass de bonis aspo?’tatis, in all cases of the wrongful detention of chat­tels, regardless of whether the defendant originally acquired possession lawfully by bailment or by theft.
For What Property

DETINUE lies for the recovery of a Spe­cific Chattel only, and not for the recovery



of fixtures, or other real property.° The goods for which it is brought must be dis­tinguishable from other property, and their identity ascertainable by some certain means.° It lies to recover any chattel that is
4. ICirkiand v. Pileher, 174 Ala. 170, 57 So. 46 (1911). This was changed under Section 78 of the Common-Law Procedure Act of 1852, 17 & 18 Vict. e, 125.
5. EnglIsh: Coupledike v, coupledike, Cro,Jac, 39, 79

Engitep. 31 (1605); West virginia: McFadden V.

Crawford, 36 W.Va, 671, 15 SE. 408, 32 Asn.St.nep.

894 (1892).


But where property which was attached to the realty so as to become a part of it, has been removed, and where timber, crops or minerals have been severed, thus acqairing the character of personal property, detinue will lie. Cooper v. Watson, 73 Ala. 252 (1882); Adler v. Prestwood, 122 Ala. 307, 24 So, 999 (1899),

1 Chatty, Treatise on Pleading and Parties to Ac­tions with Precedents and Forms 137 (London 1808;

Sec. 120

ACTION OF DETINUE

247


so identified that it may be recovered in spe­cie.7 The chattel, of course, must be in ex­istence. The action cannot be maintained in case of its destruction before suit is brought.8 But if the chattel is destroyed after suit is commenced defendant will not be relieved from liability.9
DETINUE—IJISTINGIJISHED FROM AND

CONCURRENT WITH OTHER ACTIONS

120. Once Detinue was differentiated from Debt, it was distinguishable from that action as being for the recovery of specific chattels as contrasted to money; it was distinguished from Replevin originally as being available only where the defendant acquired possession lawfully, whereas in Replevin the defendant ob­tained possession wrongfully; it differed also in respect to the time when possession or its equivalent was to be restored to the plaintiff. In its final state of development Detinue be­came to a considerable extent a concurrent rem­edy with the Actions of Trespass de bonis as­portatis, Replevin and Trover.

AS indicated in the hypothetical cases in which A loaned his horse to B to b3 returned


16th Am. ed. by Perkins, Springfield 1876); Comyn,

Digest, ‘Detinue,” B.C. (5th S., Philadelphia 1820);

Coke’s Litt., 28Gb (Philadelphia 1853); 3 Blaekstone,

Commentaries on the Law of England, c. IX, Of In

juries to Personal Property 152 (7th 5. Oxford

1775). See, also, the following cases; English:

Isaaek v. clark, 2 Bulst. 307—8, 80 Eng.Rep. 1143—44

(1615); Banks v. Whetsto]]e, Moore (KB.) 394, 72

Bag.Rep. 649 (1596): New Hampshire: Brown v.

Ellison, 55 N.H. 556 (1875); West Virginia: flcfner

v, Fidler, 58 W.Va. 159, 52 SE. 513, 3 L.R.A.

(X.S.) 138, 112 Am.St.Rep. 961 (1905).


7. Dome v. Dame, 43 N.H. 37 (1861). On the recovery of title deeds, see the following cases: English:

Atkinson v. Baker, 4 T.R. 229, 100 Eng.Rep. 985 (1791); Kentucky: Lewis v. Hoover, 1 J..LMarsh (Ky.) 500, 19 Am.Dec, 120 (1829). To recover an insurance policy, see Robinson v. Peterson, 40 III. App, 132 (1890).


8. Alabama: Lindsey v. Perry, 1 Ala. 203 (1840);

Kentucky: Caldwell v, Fenwiek, 2 Dana (Ky.) 332 (1834), in which a slave was dead when the action was brought.


$ Alabama: Wilkerson v. MeDougal, 48 Ala. 517 (1872). Contrat MisMaaippI; Whitfield v. Whit-field, 44 MIss. 254 (1874); North Carolina: Bethea v. MeLennon, 23 N.C. 523 (1841).

at the end of thirty days, and also loaned to

B five hundred dollars to be repaid in thirty days, and at the end of the period, if B, upon demand, refused to deliver up the horse or to repay the money, Debt, not Detinue, lay to recover the money, as both possession and title passed to the bailee, whereas Detinue, not Debt, lay to recover the horse, as only possession, not Title, was transferred to B



by the loan.’0 Detinue therefore differed

from Debt in that it was for the recovery of specific chattels, but not chattels in the form of money, which, because of its negotiable character, was treated as creating a debt, Originally Detinue was distinguished from Replevin in that it lay only for goods lawful­ly obtained, whereas Replevin lay only where the goods were unlawfully taken;” uiti­mately, however, Detinue also became avail­able where the taking was tortious. The two actions were and are still distinguish­able in that in Replevin the plaintiff is re­stored to the possession prior to the deter­mination of the matter of right between the parties, whereas in Detinue the plaintiff does not recover his property until the matter of right between the parties has been deter­mined by a Final Judgment in the Action, and not even then if the defendant prefers to keep the chattel and pay its assessed value.’2 In Trover, as contrasted with Det­inue, the Judgment was for the recovery of Money Damages for the wrongful act of con­version, whereas, in Detinue, the Primary Object of the Action was to recover Specific


10’ See, 3 Reoves, History of English Law, c. XV, Edward III 47 (London 1787), who reports a ease decided ia the year 1313, in which the plaintiff de­clared in debt in two counts: one for a sum of mon­ey which he alleged the defendant de~et et detOiet and the other for a sack of ‘vool ii. wInch it is said the defendant detinet.
It Meanie v. Blake, 0 Ellis & Black. 843, 119 Eng.Rcp.

1078 (1850); Harwood v. Smethui’st, 29 N.J.L. 195,

80 Am.Dec. 207 (1861); Pangburn v, Patrldge, 7

Johns. (N.Y.) 140 (181U).


12. Tierney v. Corbett, 2 Mackey 264 (S.C.D.C.18s3); Kirkland v. Filcher, 174 Ala. 170, 57 So. 40 (1911),

248


OFFENSIVE PLEADINGS

Ch. 11


Chattels, although, as just observed, the de­fendant was permitted to exercise an option of surrendering the goods or paying the As­sessed Damages.’3 And so in Trespass do bonis asportatis, unlike Detinue, the action

is for the recovery of Money Damages as

compensation to the plaintiff for the in­fringement to the right of possession of his property, the value of the property being considered as an important element in the measurement of Damages. Detinue had be­come, in its final stage of development, to a considerable extent a concurrent remedy with the actions of Trespass do bonis asportatis and Trover.



FORMS OF DECLARATION AND JUDG­MENT IN IJETINUE

121. The Forms under the Action of Detinue include not only the Declaration, but also a Form of a Judgment. The latter is included in order to show that the Judgment in Detinue, contrary to Judgments in the other Actions, was Conditional or in the Alternative, that is, for the Specific Chattels sued for, or if they were not available, their Value plus Damages for the wrongful detention.


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