Detinue

In tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant, and second, that the defendant refused to return the chattel once demanded by the claimant.
Detinue allows for a remedy of damages for the value of the chattel, but unlike most other interference torts, detinue also allows for the recovery of the specific chattel being withheld.

History

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, which was rare, but in land, livestock, or furnishings, as these were the typical measures of wealth. 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 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.

Relation to replevin

One of the oldest actions in the royal courts was replevin which had its roots in the law of customary courts. Strictly speaking, replevin in its original form was a provisional remedy. Its provision was to procure for the plaintiff the return of chattels taken out of his possession until the right to their possession could be decided by a court of law. No doubt, it was designed to avoid quarrels likely to cause a breach of the peace pending a settlement of the dispute about the right to possession. In other words, the rule of law was beginning to replace that of local force of arms and personal conflict as the resolution of disputes over chattels. The action was in direct succession to the efforts made to regulate self-help, which were the origin of the law of tort. The form of legal recourse was in connection of distress. This was the practice of taking some chattel from the peasant or underling until some action was performed. In the medieval era the services for which distress could be levied were numerous, since the incidents of tenure were then very numerous. Distress was also leviable as damage feasant. When animals strayed and did damage to a neighbor, they could be retained until the damage was made good. Whether or not the distress was levied for rent or for livestock damage feasant, the owner of the animals could obtain their release by giving "gage and pledge" – a form of security that the damage would be made good. One peculiarity of distraint lay in the fact that the distrainor did not get any form of legal possession. The goods and chattels were considered to be in the custody of the law. As a result, there was no taking of possession by the distrainor that was unlawful, since no possession was technically inferred.
The action in replevin began to appear in the thirteenth century. It seems clear that originally the action of replevin lay simply where the question to be determined was that of wrongful distress. Excess and abuse of distress was punished.
The mere claim by the distrainor that he had a right to the chattels distrained was a technicality that ended the action in replevin. It was then necessary to re-file using a new writ invented in the early fourteenth century, called the writ de proprietate probanda – a writ "concerning the proof of ownership".

Alternatives to replevin

Since the distrainor did not get possession he was not originally liable in trespass, and the spheres of the two forms of action remained distinct. During the fourteenth century, after some vacillation by judges, it was held that the plaintiff could elect which remedy he chose when the chattels had been distrained. It was also held that replevin could be used in place of the writ of trespass de bonis aspotatis. In reality, there is little evidence this substitution ever occurred with any frequency, if at all. The rule involved interference with the possession of a chattel by the rightful owner. The 1856 case of Mennie v. Blake gives what Harold Potter calls an admirable survey of the law of replevin. There it was stated:
"It seems clear that replevin is not maintainable unless in a case in which there has been first a taking out of the possession of the owner. This stands upon authority and the reason of the thing." In the Law of Torts, John Fleming wrote: "From medieval times, there has also come down to us a summary process, known as replevin, by which a man out of whose possession goods have been taken may obtain their return until the right to the goods can be determined by a court of law. Replevin arose out of the need of a turbulent society to discourage resort to self help and although for a long time primarily used in disputes about distress between landlord and tenant, it was gradually expanded to cover all cases of allegedly wrongful dispossession. If the plaintiff wanted return of his chattel in specie, replevin was a more appropriate remedy than either trespass or trover in which only damages could be recovered. Restoration of the property is, of course, only provisional, pending determination of title."
It depended upon an original unlawful taking by the way of distraint. During the seventeenth and eighteenth centuries the action of trover largely replaced trespass for wrongful distress. Replevin and trover never completely coincided, because there was a limitation on replevin.
Replevin remains the modern action, albeit defined by statute, for recovery of chattels pending a decision of the right of possession. It lies only where the possession was taken from the plaintiff, whether under colour of legal process or otherwise, by an act having the nature of a trespass.

Canadian cases distinguishing replevin from detinue

Manitoba Agricultural Credit Corp. v Heaman, a 1990 Canadian case, the Manitoba Court of Appeal adopted the words of the 1875 Manitoba Administration of Justice Act as having "codified, but not changed, at least in substance the action of replevin" by saying,
In the 1899 case McGregor v McGregor, British Columbia Supreme Court justice Irving wrote:

Medieval detinue

Detinue was an old form of action which slowly branched off from the action of debt. 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.
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. 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 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 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 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 tortiously detains it. Etc. and tortiously for this that whereas he lost the said thing on such a day, etc. he 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 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." 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, 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. 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." 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, and were wrongfully withheld from the plaintiff.