DETINUE (Lat. detinere,—de, and ten ere. —to hold from ; to withhold).
In Practice. A form of action which lies for the recovery, in specie, of personal chat tels from one who acquired possession of them lawfully but retains it without right, together with damages for the detention. 3 Blackstone, Comm. 151.
It is generally laid down as necessary to the maintenance of this action that the original taking should have been lawful, thus distinguishing it from replevin, whioh use in case the original taking is unlawful. Brooke, Abr. Detinue, 21, 36, 63. It is said, however, by Chitty, that it lies in cases of tortious taking, exoept as a distress, and that it is thus distinguished from replevin, which lay ori ginally only where a distress was made, as was claimed, wrongfully. 1 Chitty, Plead. 112, 113. See 3 Shurswood, Blackst. Comm. 152, and notes. In England this action has yielded to the more prac tical and less ,technical action trover, but is much used in the slaveholding states df'tbe United States for the recovery of slaves. 4 Munf. Va. 72; 4 Ala. 221; 3 Bibb, Ky. 510; 16 Ov. Tenn. 187; 10 lred. No, C. 124.
2, The action lies only to recover such goods as are capable of being identified and distinguished from all others. Comyns, Dig. Retinue, B, C ; Coke, Litt. 286 b; 1 J. J. Marsh, Ky. 500; 5 id. 1; 15 B. Monr. Ky. 479; 2 Greene, Iowa, 266; 5 Sneed, Tenn. 562, in cases where the defendant had ori ginally lawful possession, which he retains without right, 12 Ala. 279; 2 Mo. 45 ; 4 B. Monr. Ky. 365 ; 15 id. 479; 11 Ala. N. s. 322; as where goods were delivered for application to a specific purpose, 4 Bos. & P. 140; but a tort in taking may be waived, it is said, and detinue brought, 2 A. K. Marsh. Ky. 268; 14 111 ). 491; 15 Ark. 235 ; that it lies wile they the taking was tortious or not. 18 Ala. 151; 9 Ala. N. s. 780; 1 Mo. 749. The pro perty must be in existence at the time, 2 Dan. Ky. 332; 10 Ala. 1 Ala. N. s. 203; 1 I lid. No. C. 523; see 10 Ala. 123 ; 23 Ala. N. s. 377; 13 Mo. 612; 12 Ark. 368; but need not be in the possession of the de fendant. 1 Dan: Ky. 110; 3 id. 36; 5 Yerg. Tenn. 301; 1 Brev. So. C. 301; 3 Miss. 304; 19 Ala. N. S. 491; 1 Hempst. C. C. 111; 23 Mu. 389; 18 B. Monr. Ky. 86. See 4 Dev. & B. No. C. 458 ; 10 Ired. No. C. 124.
3. The plaintiff must have had actual pos session, or a right to immediate possession, 2 Mo. 45; 1 Wash. Va. 308; 3 Munf. Va. 122; 4 id. 72; 4 Bibb, Ky. 518; 7 Ala. N. s. 189; 6 Ired. No. C. 88; 2 Jones, No. C. 168 ; 2 Md. Ch. Dec. 178; but a special property, as that of a bailee, with actual possession at the time of delivery to the defendant, is sufficient. 2Wms. Saund. 47 b, c, d; 9 Leigh, Va. 158; Cam. & N. No. C. 416; 1 Miss. 315 ; 5 id.
742 ; 4 B. Monr. Ky. 365 ; 2 Mo. 45; 22 Ala. 534. A demand is not requisite, except to entitle the plaintiff to damages for detention between the time of the demand and that of the commencement of the action. 1 Bibb, Ky. 186. 4 id. 340; 1 Mo. 9; 14 id. 491; 3 Litt. 'Ky. 46 ; 3 Munf. Va. 122; 8 Ala. 279; 12 Ala. x. s. 135; 1 Hempst. C. C. 179.
The declaration may state a bailment or trover ; though 'a simple allegation that the goods came to the defendant's hands is suffi cient. Brooke, Abr. Detinue, 10. The bail ment or trover alleged is not traversable. Brooke, Abr. Detinue, 1, 2, 50. It must de scribe the property with accuracy. 2 Ill. 206; 13 Ired. No. C. 172; 2 Greene, Iowa, 266. The plea of non-detinet is the general issue, and special matter may be given in evidence under it, Coke, Litt. 283 ; 16 Eng. L. & Eq. 514; 2 Munf. Va. 329 ; 4 id. 301; 6 Humphr. Tenn. 108; 31 Ala. N. s. 136; including title in a third person, 3 Dan. Ky. 422 ; 17 Ala. 303 ; 12 Ala. N. s. 823, eviction, or accidental loss by a bailee. 3 Dan. Ky. 16.
4. The defendant in this action 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 demanded, and making privity of bailment. Brooke, Abr. Garnishment, 1, Interpleader, 3. If the prayer of garnishment was al lowed, a ad. ja. 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 exe cution ; and against the garnishee a judg ment for damages, and a fi. fa. in execution.
5. The judgment is in the alternative that the plaintiff recover the goods, or the value thereof if he cannot have the property itself, 9 Ala. 123; 7 Ala. N. s. 189; 5 Munf. Va. 166; 1 Bibb, Ky. 484 ; 7 B. Monr. Ky. 421 ' • 4 Yerg. Tenn. 470 ; 8 Humphr. Tenn. 406 ; 5 Mo. 489 • 4 Ired. Eq. No. C. 118; 7 Gratt. Va. 343 ; 4 Tex. 184; 12 id. 54; with damages for the detention, 4 Ala. 221; 1 Ired. No. C. 523 ; 13 Mo. 612; 8 Gratt. Va. 578; 16 Ala. N. s. 271, and full costs.
The verdict and judgment must be such that a speeial remedy may be had for a re covery of the goods detained, or a satisfaction in value for each parcel in case they or either of them cannot be returned. 7 Ala. N. s. 189, 807 i4 Yerg. Tenn. 570 ; 2 Humphr. Tenn. 59 ; 5 Miss. 489; 3 T. B. Monr. Ky. 59; 6 id. 52; ' 4 Dan. Ky. 58 ; 3 B. Monr. Ky. 313.