Tuesday, December 15, 2009


...Historically, detinue came in two forms: "detinue sur bailment" and "detinue sur trover".

In detinue sur bailment, the defendant is in a bailment relationship with the claimant and either refuses to return the chattel or else has negligently or intentionally lost or destroyed it. The onus is on the bailee to prove that the loss of the chattel was not his or her fault.

In detinue sur trover, the defendant can be any individual in possession of the chattel who refuses to return it to the claimant. A defendant could be a finder or a thief or any innocent third party, and the claimant need only have a better right to possession.

Early writs and forms of action were exceptionally narrow in scope. This is reflective of the basic conservatism of the Common Law courts in the middle and late medieval period. This was in contrast with the Courts of Equity which were creative in producing novel writs for many new fact situations. Compensation in those days was usually not in money. No one had much money.

Wealth was measured in land, cattle, horses and furnishings. When a harm was done, it was often from the loss of these things. What the plaintiff wanted back was the land, cattle or even coins lent. Maitland suggests that in the earliest time the writ of debt seems almost to have been designed to recover identical coins.

The early writ of detinue was specifically designed for recovery of a chattel wrongfully detained, but not an action to recover loss due to a chattel being harmed with while the defendant had it.

Two facts marked the early common law actions. They were defective because of the wide field which was excluded. They were also defective because the plaintiff might well think himself entitled to a remedy, but by reason of the procedure find that he went away empty. The defendant to a writ of debt or detinue might bring others with him who would swear that his denial of the claim was true.

This was technically called his “wage of law” or “wager of law”. It was enough to dispose of the plaintiff’s claim. A common way to escape all writs, even the writ of right, as well as debt and detinue was to claim sickness. If the jury found him in bed with his boots off, the custom was to delay the writ for a year and a day. .."

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