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 de-manded, 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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