Editing Detinue (section)

==Medieval detinue==

Detinue was an old form of action which slowly branched off from the action of debt.<ref>P. & M., II, p. 173, ibid.</ref><ref name=kiralfy />{{rp|405}} The action lay for the unlawful detention of ascertained chattels at the instance of a person who was entitled to have possession. The writ was a command to the defendant that he should deliver up to the plaintiff the chattels ''quae ei injuste detinet'' – "which he unlawfully withholds from him". The gist of the action was the unlawful detention by the defendant. An example is seen when a borrower might be sued for unlawfully refusing to return a borrowed article.<ref>Year Book 20 & 21, Edward I ( R. S.), p. 192</ref>

[[Image:Anton Schmitz Wildschweine 1882.jpg|right|thumb|[[Bracton]] described an early case of detinue where three pigs were unlawfully detained from a woman.]]
Ames regarded the action of detinue as essentially an action based upon contract, having its foundation in bailment.<ref>Lectt., pp. 70–79, and pp. 82-83</ref><ref>Holmes, ''Common Law'', p. 169.</ref><ref>P. & M., II, pp. 174, 175.</ref> Ames' point is that the action was a means of enforcing an agreement which was recognized by the law. This argument represents the realization of a theory of contract in detinue. Detinue also replaced the more ancient action of [[res adiratae]]. According to Bracton the plaintiff could drop the words felony and merely claim that his chattels were in the possession of the defendant. Holdsworth is of the opinion that the gist of this action was unlawful detention. Holdsworth bases this on a case from Bracton's notebook<ref>Bracton, Note Book, case 824</ref> in which the plaintiff alleges that "William Nutach in the peace of God and of our Lord the King and of his bailiffs unjustly detains (''injuste detinuit'') from her three pigs which were lost to her." The action depended upon loss of the chattel, which had come to the hands of a defendant who had refused on demand to give it up. Holdsworth deduces this case was the forerunner of the action in detinue, which also lay to recover a lost chattel. Ames is of the opinion that this case represents not so much an action, but a formal demand made in court for the return of the chattel, which, if denied, could be followed by an appeal. It is certain that an appeal could be substituted after an allegation of ''res adiratae'' had been made. It is disputed whether proceedings in ''res adiratae'' could not be brought in royal courts. Holdsworth cites a case from 1292<ref>Year Book 21 & 22 Edward I, (R. S.), at pp. 466–468</ref> which seems to fulfill all the requirements of ''res adiratae''. "Note that where a thing belonging to a man is lost, he may count that he (the finder) tortiously detains it. Etc. and tortiously for this that whereas he lost the said thing on such a day, etc. he (the loser) on such a day etc., found it in the house of such a one and prayed him to restore the thing but he would not restore it, etc., to his damage, etc.; and if he etc. In this case the demandant must prove by his law (his own hand the twelfth; i.e. [[wager of law]]) that he lost the thing."

Ames said of detinue "In the first place, the count must allege a bailment, and a traverse of this allegation was an answer to the action."<ref>Lectt, p. 71</ref> However, there are many instances where allegation of bailment was not necessary for an action in detinue. Holdsworth cites a 1313 case in which the counsel. Toudeby for the defendant pleaded no allegation of bailment, but Scrope, the counsel for the demandant (plaintiff), replied that, if the defendant carried off the chattels and a writ was brought to recover them, it was no answer to say that the chattels had not been bailed to the plaintiff. Still the case turned on the question of bailment.<ref>Year Book 6 Edw. II (XXXIV, S. S.), p. 167</ref> In 1343, the defendant was driven to a traverse in these terms: "We tell you that the horse did not come into our keeping, nor do we detain the horse, as he counts."<ref>Year Book 17 & 18 Edw. (R. S.), pp. 514, 516</ref> In 1410, both counsel agreed that an action of detinue lay whether the chattel was bailed or whether the defendant found it in the road. The plea simply amounted to an assumption that the chattels had come into the hands of the defendant (devenerunt ad manus), and were wrongfully withheld from the plaintiff.<ref>Year Book 11 Henry IV, H., pl. 20, at f. 46 b</ref>