Legal Definition of Detinue
The name of an action for the recovery of a personal chattel in specie.2 min read
The name of an action for the recovery of a personal chattel in specie.
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
The goods which it is sought to recover, must be capable of being distinguished from all others, as a particular horse, a cow, etc., but not for a bushel of grain. Detinue cannot be maintained where the property sued for had ceased to exist when the suit was commenced.
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.
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. 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.
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, etc., of the defendant without more. 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.
Nor is the bailment traversable, but the defendant must answer to the detinue. 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.