cern', or if such deeds are in a chest: and the like. But for money (not in a bag or chest) or corn", and other things which cannot be distinguished from property of the same kind or description, detinue will not lie. The gist of the action being the detainero, it is necessary, that the defendant should be in possession of the goods.-Hence, if the bailee of goods die, detinue will not lie against his personal representative, unless he takes possession of the goodsP (5). But if, after the death of the bailee, a stranger takes the goods, detinue lies against such stranger. If goods be delivered to husband and wife, detinue ought to be brought against the husband only. But if they are delivered to the wife before marriage, the action must be brought against husband and wifes. From the preceding cases it may be collected, that the grounds of the action of detinue are,

1. A property in the plaintiff, either absolute or special (at the time of action brought) in personal goods which are capable of being ascertained.

2. A possession in the defendant by bailment, finding, &c. 3. An unjust detention on the part of the defendant.

II. Of the Pleadings and Evidence.

THE manner in which the goods came into the possession of the defendant is matter of inducement only; hence, if the plaintiff declares on a bailment, the defendant cannot plead that the plaintiff did not bail the goods; for the bailment is not traversablet. So where the plaintiff declared, that the goods came to the hands of the defendant by finding", and the evidence was, that the plaintiff had delivered the goods

11 Inst. 286. b.

m Banks v. Whetston, Cro. Eliz. 457. n 1 Inst. 286. b.

o 2 Bulst. 308. Gledstane v. Hewitt,

1 Cr. and J. 565. 1 Tyrw. 445. p 1 Rol. Abr. 607. (D.) pl. 1. q Ib. pl. 2.

r 38 E. 3. 1. a.

s 1 Inst. 351. b.

t Walker v. Jones, 2 Cr. and M. 672. 4 Tyrw. 915. Bro. Abr. Detinue de biens, pl. 50.

u Mills v. Graham, 1 Bos. and Pull. N. R. 140.

(5) Executors are chargeable in this action, on the ground of possession only. Bro. Ab. Detinue de biens, pl. 19. If there are three executors, and one hath possession, detinue lies against him only. Ib.

to the defendant (an infant) for a special purpose, and the defendant refused to re-deliver them; it was holden that the evidence supported the declaration. If the action be brought for several articles, it is not necessary to set forth the separate value of each in the declaration; it is sufficient if the jury sever the values by their verdict. The plaintiff must prove the detainer of the goods precisely as laid in the declaration. Hence, in detinue for a bond for 100%. upon bailmenty, if defendant plead, that he did not receive a bond for such sum, and it is found that he received a bond for a greater sum, there must be a verdict for the defendant; because the bond is not the same as that which the plaintiff demands. The plea of non detinet shall operate as a denial of the detention of the goods by the defendant, but not of the plaintiff's property therein, and no other defence than such denial shall be admissible under that plea. Plaintiff had delivered to defendant the title deeds of plaintiff's wife's estate; plaintiff afterwards levied a fine of the estate to the use of his son. Plaintiff afterwards commenced an action of detinue against the defendant for the deeds; it was holdena, that as the muniments of an estate belong to the person who has the legal interest in it, plaintiff could not recover; for at the time the action commenced the deeds were not the property of the plaintiff, but of the son; who being the true owner, ought to sue for them at once.

III. Of the Judgment.

THE form of the judgment in this action is, that the plaintiff do recover the goods in question, or the value thereof, if the plaintiff cannot have the goods, and his damages; that is, damages for the detention (6). The language of the

x Pawly v. Holly, 2 Bl. R. 853.

y 2 Roll. Abr. 703. Trial, pl. 11. z R. G. H. T. 4 W. 4.

a Philips v. Robinson, 4 Bingh. 106.

b Townsend's 1st Book of Judgments, 344. 2nd Book of Judgments, 82, 83. 84, 85. Aston's entries, 202, pl. 8. Peter v. Heyward, Cro. Jac. 681, 2, Keilw. 64. b. per Frowick, C. J.

(6) The judgment in trover is, "that the plaintiff do recover his damages." Knight v. Bourne, Cro. Eliz. 116.

judgment being in the alternative, that the plaintiff do recover the goods, or the value thereof, it is incumbent on the jury to find the value (7), and an omission in this respect cannot be supplied by a writ of inquiry of damages.

c Per Coke, in Cheney's case, 10 Rep. 119. b. recognised by Holt, C. J. in Herbert v. Waters, Salk. 206, where he said, that he thought that a con

trary determination in Burton v. Robinson, Sir T. Raym. 124. and I Sid. 246, was not law.

(7) If several things are demanded, the jury ought to find the value of each particular thing. East. T. 3 H. 6. 43. a.

CHAP. XVII.

DISTRESS.

I. Of the Nature and Origin of a Distress.

II. Of the Causes for which a Distress may be taken. III. Of the Things which may, and the Things which may not be distrained.

IV. Who may distrain.

V. Of the Time at which a Distress may be taken.

VI. Of the Place where a Distress may be taken.

VII. The Manner of disposing of Distresses, and herein of the Sale of Distresses for Rent Arrear.

VIII. Of Pound Breach and Rescous.

IX. Of abusing the Distress, and of Irregularity in the Proceeding by the Party distraining.

I. Of the Nature and Origin of a Distress.

THE power of distraining was given to the lord (in lieu of the forfeiture of the land,) for the purpose of enforcing the tenant to perform those services which were the consideration of his enjoyment of the land. Hence the distress was considered merely as a pledge, and the detention thereof was justifiable only so long as the duties incident to the tenure remained undischarged. If the tenant offered gages and pledges for the performance of the services, and the lord, after such offer, persisted in detaining the distress, the tenant might sue out a writ of replevin, the tenor of which was, that the defendant had taken and unjustly detained the goods, "against gages and pledges." This form is still preserved in the proceedings in replevin, but the offer of gages and pledges has fallen into disuse. The replevin was considered as so much a

matter of right, that if a person by deed granted a rent with a clause of distress, and granted further, that the distresses taken should be irreplevisable, yet they might be replevied, such a restriction being against the nature of a distressa. Goods distrained are not liable to the distress of another subject, because in custody of the lawb; nor to another subject's execution, for the same reason. But an immediate extent against the king's debtor for the king's own debt, after a distress, but before actual sale, shall prevail, notwithstanding the custody of the law, on the ground of the general rule of preference allowed by law to the king's debts.

II. Of the Causes for which a Distress may be taken.

1. At Common Law.-A distress may be taken for the nonperformance of services, either certain or such as may be reduced to certainty, viz. heriot-servicef, rent-services, suitserviceh, that is, suit to a hundred court, or court-baron; for non-payment of a fine imposed on an inhabitant of a manor, by the steward of a court leet, for refusing to take the customary oath, when elected to the office of a constable; for non-payment of an amerciament in a court leet, for a nuisancek, or for an offence done in court1; lastly, at common law, goods or cattle damage feasant may be distrained. A landlord cannot distrain", unless there be an actual demise to the tenant at a fixed rent. Hence where tenant holds under an agreement for a future lease, and no lease has been executed and no rent subsequently paid, the landlord cannot distrain. But payment of rent under such an agreement will constitute an acknowledgment of a tenancy from year to year, under which the landlord will be authorised to distrain; and so will admission P of a charge of half a year's rent in an ac

b Bro. Distr. 75. cited by Ld. C. B. Parker, 2 Ves. 294.

c Bro 28. Finch, 11, cited by Ld. C. B. Parker, in R. v. Cotton, Parker, 120. d R. v. Cotton, Parker, 112. recognized in Giles v. Grover, D. P. 1832. 9 Bingh. 128, where eight judges held that goods of a debtor seized, under a fi. fa., but not sold, might be taken under an extent in chief, or in aid; Gaselee, J. & Littledale, J. dissent. Similar doctrine was laid down in Grove y. Aldridge, 9 Bingh. 428,

upon the authority of Giles v. Grover.

e 1 Inst. 96. a.

f 1 Rol. Abr. 665. 1. 47. Plowd. 96.
g Litt. sec, 213.

h 1 Rol. Abr. 665. 1. 40.
i 8 Co. 41. a.

k Prat v. Stern, Cro. Jac. 382.
11 Rol. Abr. 666. 1. 1.

m 1 Inst. 142. a. 161. a.

n Dunk v. Hunter, 5 B. & A. 322. Regnart v. Porser, 7 Bingh. 451.

o Knight v. Benett, 3 Bingh. 361. Mann. v. Lovejoy, Ry. and M. 355. p Cox v. Bent, 5 Bingh. 185.