Nature of Detinue
Detinue is the wrongful withholding, retention or detention of goods (chattels, movable personal property) by the defendant, in respect of which the claimant has a better title. The person detaining the chattel must do so adversely to the claimant’s rights. It is the appropriate claim/form of action for the recovery of goods.
Generally, a demand must be first made of the defendant, before taking legal action. The demand should be notified to the person who possesses the goods or otherwise brought to his knowledge. A demand is not required where it would be patently futile.
The withholding must be unlawful and in breach of the claimant’s rights. Where the refusal to deliver is reasonable, for example, where the item has been found, and the claimant’s claim is not apparent, the refusal may be lawful.
The mere keeping of another person’s goods does not to detinue. Where, however, a person has possession of the goods of another and a valid demand is made for them by the owner, an unqualified and unjustifiable refusal to deliver them up entitles the owner to sue in detinue and is evidence of conversion.
The subject-matter of detinue must be specific personal property. Detinue does not lie for money unless it is specifically identified such as in a bag. At common law, an action for detinue lies for recovery of the title deeds to land.
Detinue does not lie for fixtures which are attached to land. It does for timber crops soil and minerals only after such things have been severed from the freehold.
The property in money which has passed in currency or in a negotiable instrument which is in the hands of a bond fide holder for value does not revest on the conviction of the thief, and no action can be brought to recover such property.
Detinue against Bailees
Detinue lies against a bailee who refuses to redeliver goods at the end of the bailment. A bailee of goods for hire who sells or pledges the goods ends the bailment, and an action for conversion lies against him.
The improper use of the goods may determine the bailment and the bailee may be sued in detinue. If a bailee for safe custody wrongfully deals with them, an action may be brought immediately upon the conversion. The bailor may also demand the re-delivery of the goods,and may sue the bailee in detinue for breach of his duty to deliver upon request
A bailee of goods is precluded from questioning the title of his bailor or showing a property in any other person through whom he does not claim. If the claimant was not in possession of the goods at the time of the conversion, the defendant is entitled to set up the right of a third person
Action by Bailees
Where goods are bailed simply without consideration, either the bailor or the bailee may sue for trespass if they are wrongfully taken out of the bailee’s possession. A person who as against the owner is entitled to the possession of goods can sue in detinue a wrongdoer who takes them away and can even sue the owner if the owner deprives him of the goods.
If goods which are in the possession of a bailee for hire are converted, the bailee is the proper person to sue but if the bailee sells them, the owner can sue the purchaser even if the purchase was made bond fide.
Where goods are pledged, the pledgee has the right to their possession, and, until the money for which the pledge is a security is tendered or paid, the pledgee can sue in detinue. If a pledgee refuses a tender of the sum due, he loses his property in the goods, and the pledgor can then sue him in detinue.
Where the mortgagor of goods is allowed to hold them up to the day fixed for payment, he is the proper claimant to sue but if he sells the goods, the owner may sue him or a purchaser from him. Where goods are mortgaged and are in the possession of the mortgagee, the mortgagor cannot sue in detinue, until he pays the mortgage debt. His remedy is to sue for the redemption of the security upon satisfaction of the debt.
Detinue and Third Parties
Where it is reasonable for the person holding the goods to refuse to return them, such as where the claimant’s title is unclear, the former may take steps to ascertain the claimant’s title. There is an onus to act quickly and to undertake the searches and investigations process as quickly as possible.
The third party may interplead and place the goods under the contract of the court. The contesting claimants may be required to litigate their claim.
Where goods are entrusted to a person under a bailment, the bailee remains liable for detinue, even if he ceases to have possession of them or loses them. In contrast, where a person finds goods and later loses them, he is not liable for detinue. He may be liable in conversion if he has wrongly disposed of the goods.
Detinue lies for goods the subject of unlawful execution. In the case of the seizure of goods under an execution against the person who has a right to their immediate possession, the owner of the goods must apprise the sheriff as soon as they are seized that the person in possession has only a limited interest in the goods.
Remedies for Detinue
Where a person wrongfully withholds movable goods from the true owner (the person with a better title) after demand, the true owner may sue that person for the civil wrong of detinue. The mere holding of the goods without denying the true owner’s title, would not be a conversion but may be detinue.
A person who detains goods may be subject to an order for their delivery and /or may be liable in damages for their detention. He may be liable alternatively for their return and/ or for the value of the goods, together with damages in either case. Where it is an ordinary item, with no unique characteristics, the power to order delivery is discretionary.
Judgment for the claimant in detinue is for delivery of the chattel in dispute or for damages to be reduced, if the chattel is delivered up, or for the delivery of the chattel and damages if any have been sustained. If a claimant has obtained a judgment in trespass or judgment in detinue for the return of the chattel in dispute or the payment of its value, the judgment, if satisfied by the payment of damages, vests the property in the chattel in the defendant.
If goods have been converted or detained, and both the right of property and the legal possession of the goods or the right to the immediate possession at the time of the conversion or detention are held by the same person, that person is the proper claimant in an action of trespass or detinue.
The owner of goods cannot sue in trespass or detinue unless immediate he is in possession of them or has the immediate right to possession. An owner with a future interest who has parted with the possession for a time can maintain an action for injury to his reversionary interest, although he cannot sue in trespass or detinue.
Order for Delivery
An order can be sought for the return (or specific delivery) of the goods and damages (compensation) for their detention. Alternatively, the value of the goods plus damages for their detention may be sought and ordered.
The defendant may be ordered to deliver up the goods detained without having an option to pay damages. The court’s power to order the return of an item is discretionary. Delivery may be denied where the thing concerned is an ordinary item, which can be replaced, has no particular value, provided that damages would be adequate.
If the defendant restores the chattel converted or detained, the court may in proceedings,stay proceedings on payment of nominal damages and costs. In a proper case, if the value of the chattel is ascertained, and no special damages are claimed, the court may order a stay of the proceedings.
If a person’s goods have been converted or detained and are sold by the wrongdoer, the owner may waive the tort and sue for money had and received. If he does so, he cannot subsequently sue in trespass or detinue. If the owner sues in trespass and recovers judgment, the judgment is a bar to an action for money had and received in respect of the same goods
If the goods are delivered to the claimant, he may be entitled to more than nominal damages, goods after unless he proves that he has suffered some damage by the detention If the goods are returned in a damaged state, the claimant is entitled to damages for such loss in value at the time of their return.
Special damages may be given besides the value of the goods if the damages have been sustained and are not too remote. The claimant may be entitled to damages for the depreciation of the goods. The owner of a chattel who has been wrongfully deprived of its use may recover substantial damages, although he may not have incurred any out-of-pocket expenses.
An allowance may be made to the defendant, where he has done works or taken steps which have increased the value of the goods.Where the defendant in an action of trespass or detinue has not been guilty of fraud or negligence and has bond fide incurred expenses with respect to the goods and the claimant has the benefit of such expenses, if the goods are delivered up to him, the defendant is entitled to reduce the damages awarded against him by the amount of such expenses.
The defendant may deny that he converted or detained the goods in dispute, and dispute the not only the act alleged to constitute the conversion or detention, and also the circumstances alleged to make such act wrongful. Thus, he may show that the goods were lawfully taken under a distress or under an execution or with the consent of the claimant
In detinue the detention may be denied or justified; in trespass, the conversion may be denied or the defendant may show that his acts did not amount to conversion; conversion is always a wrongful act, and cannot be confessed and avoided.
It is a good defence in trespass or detinue if the defendant shows that he never had possession of the goods, but it is no defence, if the defendant had possession of the goods, to show that he has lost them or parted with the possession, unless such loss or parting with the possession can be justified.
The defendant may show that he is entitled to a lien on the goods in respect of a debt or liability of the claimant or that he is otherwise entitled to retain the goods as mortgagee, or pledgee, or owner or part owner, or as a person with a right to their possession.
If a defendant claims to retain the property sued for by virtue of a lien or otherwise as security for any sum of money, the court or a judge may order that the claimant be at liberty to payinto court, to abide the event of the action, the amount of money in respect of which the lien or security is claimed and a further sum, if the court or a judge so directs, for interest or costs, and that upon such payment into court being made the property claimed, to be given up to the claimant.
Defence of Title
The defendant in an action of trespass or detinue may deny the claimant’s property in the goods or that he was entitled to the possession of the goods. This defence puts in issue the claimant’s right to the possession of the goods at the time of the alleged conversion or detention.
If the property in the goods is clearly proved in the action to belong to some person other than the claimant, he cannot succeed in an action of trespass or detinue, but if a person in possession of goods sues in trespass or detinue, the defendant cannot set up as a defence a title in some third person under whom he does not claim.
The claimant in an action of trespass or detinue may be estopped by his conduct from setting up his title to the goods. Thus, if the owner of goods allows another to represent the goods as his own and by his words or conduct intentionally induces a third person to buy them bond fide, the owner cannot recover them
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