Front Page Titles (by Subject) 64.: JAMES BARR AMES, THE HISTORY OF TROVER 1 - Select Essays in Anglo-American Legal History, vol. 3
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64.: JAMES BARR AMES, THE HISTORY OF TROVER 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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THE HISTORY OF TROVER1
THE classic count in trover alleges that the plaintiff was possessed, as of his own property, of a certain chattel; that he afterwards casually lost it; that it came to the possession of the defendant by finding; that the defendant refused to deliver it to the plaintiff on request; and that he converted it to his own use, to the plaintiff’s damage. And yet throughout the history of this action the last of these five allegations has been the only one that the plaintiff must prove. The averments of loss and finding are notorious fictions, and that of demand and refusal is surplusage, being covered by the averment of conversion. Under the first allegation the plaintiff need not prove that the chattel was his own property, or that he was in actual possession of it. It is enough to show actual possession as a bailee, finder, or trespasser, or to prove merely an immediate right of possession.
A greater discrepancy than that here pointed out between a count and the evidence required to support it can hardly be found in any other action. But it is generally true that averments in pleading, however inaccurate, superfluous, or fictitious they may be at a given time, were once accurate and full of legal significance. The count in trover is no exception to this rule. To make this clear, however, it is necessary to consider in some detail the remedies at the command of the plaintiff, in early English law, for the asportation, detention, or destruction of chattels. These remedies were the four actions, known as Appeals of robbery or larceny, Trespass, Replevin, and Detinue.
Appeal of Robbery or Larceny
For a century after the Norman Conquest there was no public prosecution of crime. Proceedings against wrongdoers, whether criminals or mere tort-feasors, depended upon the initiative of the parties injured, and took the form of private actions. These actions, in the royal courts, were called appeals, and, in their final development, fell into three classes: (1) the compensatory appeals, i. e., appeals of battery, mayhem, and imprisonment, in which the appellor recovered damages; (2) the punitory appeals, i. e., appeals of homicide, rape, arson, and also robbery or larceny of chattels worth 12d. or more, where the stolen chattels could not be recovered, in which the punishment of the defendant was the sole object;1 (3) the recuperatory appeals of robbery or larceny, in which the appellor sought to recover the stolen chattels as well as to discover and punish the thief. It is with this class of appeals that we are concerned in this paper.
The procedure in the Anglo-Norman period is described by Glanvil, Bracton, Britton, and Fleta.2 Britton’s account is the fullest. The victim of the theft upon the discovery of his loss raised hue and cry, and with his neighbors made fresh pursuit after the thief. If the latter was caught, on fresh pursuit, with the “mainour,” i. e., with the pursuer’s goods in his possession, the case was disposed of in the most summary manner. The prisoner was taken at once to an impromptu court, and if the pursuer, with others, made oath that the goods had been stolen from him, was straightway put to death, without a hearing, and the pursuer recovered his goods. Britton’s statement is borne out by several reported cases.1
If not taken freshly on the fact, the person found in possession of the chattel had a right to be heard. The appellor, placing his hand upon the chattel,2 charged the appellee with the theft. There were several modes of meeting the charge. The appellee might deny it in toto. The controversy was then settled by wager of battle, unless the appellee preferred a trial by jury.3 The chattel went to the winner in the duel.
The appellee might, on the other hand, claim merely as the vendee or bailee of a third person. He would then vouch this third person as a warrantor to appear and defend the appeal in his stead. Glanvil gives the writ to compel the appearance of the warrantor.4 If the warrantor failed to appear, or, appearing, successfully disputed the sale or bailment by wager of battle,5 the appellor recovered the chattel, and the appellee was hanged. If the appellee won in the duel with the vouchee, the vouchee was hanged.6 If the warrantor came and acknowledged the sale or bailment, the chattel was put temporarily in his hands, the appellee withdrew from the appeal, and the appellor thereupon appealed the warrantor as the thief or with the words that he knew no other thief than him.1 The warrantor might in his turn vouch to warranty or dispute the appellor’s right. If the appellor was finally successful against any warrantor, he recovered the chattel. If he was unsuccessful, the chattel was restored to the original appellee. This vouching to warranty is to be regarded as the following up of the trail of the thief, whose capture is an essential object of the whole procedure.
The appellee might, thirdly, though having no one to vouch as a warrantor, claim to have bought the chattel at a fair or market. Upon proof of this he was acquitted of the theft; but the appellor, upon proof of his former possession and loss of the chattel, recovered it. There was, as yet, no doctrine of purchase in market overt.
This private proceeding for the capture of the thief and recovery of the stolen chattel, as described in English law treatises and decisions of the thirteenth century, is of Teutonic origin. Its essential features are found in the Salic law of the fifth century;2 but by the middle of the thirteenth century this time-honored procedure had seen its best days. The public prosecution of crime was introduced by the Assize of Clarendon in 1166, and with the increasing effectiveness of the remedy by indictment, the victims of robbery or theft were more and more willing to leave the punishment of wrong-doers in the hands of the Crown. On the other hand, the path of him who would use the appeal as a means of recovering the chattel stolen from him was beset with difficulties.
The appellor must, in the first place, have made fresh pursuit after the thief. In 1334 it was said by counsel that if he whose goods were stolen came within the year and a day, he should be received to have back his chattels. But Aldeburgh, J., answered: “Sir, it is not so in your case, but your statement is true in regard to waif and estray.”3
Secondly, the thief must have been captured by the appellor himself or one of his company of pursuers. In one case the owner of the stolen chattel pursued the thief as far as a monastery, where the thief took refuge in the church and abjured the realm. Afterward the coroner delivered the chattel to the owner because he had followed up and tried to take the thief. For having foolishly delivered the chattel the coroner was brought to judgment before the justices in eyre.1 So if the thief was arrested on suspicion by a bailiff, the king got the stolen chattel, because the thief was not arrested by the party.2
Thirdly, the thief must be taken with the goods in his possession. If, for instance, the goods were waived by the thief and seized by the lord of the franchise before the pursuers came up, the lord was entitled to them.3
Fourthly, the thief must be convicted on the pursuer’s appeal. “It is coroner’s law that he, whose goods were taken, shall not have them back unless the felon be attainted at his suit.”4 In one case the verdict in the case was not guilty, and that the appellee found the goods in the highway. The goods were present in the court. It was asked if the goods belonged to the appellor, and found that they did. Nevertheless, they were forfeited to the king.5 In another case the thief was appealed by three persons for different thefts. He was convicted upon the first appeal and hanged. The goods stolen from the two other appellors were forfeited to the king.6 The result was the same if the pursuer’s failure to convict was because the thief rather than be taken killed himself,1 or took refuge in a church and abjured the realm,2 or died in prison.3
Finally, since the rule which denied the right of defence by wager of battle to one taken with the “mainour” seems not to have been established before the fourteenth century,4 the appellor was exposed to the risk of defeat and consequent loss of his chattels by reason of the greater physical skill and endurance of the appellee. There was the danger, also, that an appellee of inferior physical ability might fraudulently vouch as a warrantor an expert fighter, who, as a paid champion, would take the place of the original appellee. To avoid the duel with this champion, the appellor must establish by his secta or by an inquest that the ostensible warrantor was a hired champion.5
It is obvious from this account of the appeal of robbery or larceny that the absence of pecuniary redress against a thief must sooner or later become an intolerable injustice to those whose goods had been stolen, and that a remedy would be found for this injustice. This remedy was found in the form of an action for damages, the familiar action of
Trespass de Bonis Asportatis
The recorded instances of trespass in the royal courts prior to 1252 are very few. In the “Abbreviatio Placitorum” some twenty-five cases of appeals of different kinds are mentioned, belonging to the period 1194-1252, but not a single case of trespass. In the year 37 Henry III. (1252-1253) no fewer than twenty-five cases of trespass are recorded, and from this time on the action is frequent, while appeals are rarely brought. It is reasonable to suppose that the writ of trespass was at first granted as a special favor, and became, soon after the middle of the fourteenth century, a writ of course.
The introduction of this action was a very simple matter. An original writ issued out of Chancery directing the sheriff to attach the defendant to appear in the King’s Bench to answer the plaintiff. The jurisdiction of the King’s Court was based upon the commission of an act vi et armis and contra pacem regis, for which the unsuccessful defendant had to pay a fine. These words were therefore invariably inserted in the declaration. Indeed, the count in trespass was identical with the corresponding appeal, except that it omitted the offer of battle, concluded with an ad damnum clause, and substituted the words vi et armis for the words of felony,—feloniter, felonice, in felonia, or in robberia. The count in the appeal was doubtless borrowed from the ancient count in the popular or communal courts, the words of felony and contra pacem regis being added to bring the case within the jurisdiction of the royal courts.1
The procedure of the King’s Courts was much more expeditious than that of the popular courts, the trial was by jury2 instead of by wager of law, and judgment was satisfied by levy of execution and sale of the defendant’s property, whereas in the popular courts distress and outlawry were the limits of the plaintiff’s rights. As an appeal might be brought for the theft of any chattel worth 12d. or more, and as the owner now had an option to bring trespass where an appeal would lie, there was danger that the royal courts would be encumbered with a mass of petty litigation. To meet this threatened evil the Statute 6 Ed. I. c. 8 was passed, providing that no one should have writs of trespass before justices unless he swore by his faith that the goods taken away were worth 40 shillings at the least.
The plaintiff’s right in trespass being the same as the appellor’s right in the appeal, we may consider them together. Bracton says the appeal is allowed “utrum res quae ita subtracta fuerit, extiterit illius appellantis propria vel alterius, dum tamen de custodia sua.”1 Britton and Fleta are to the same effect.2 The right is defined with more precision in the “Mirror of Justices”: “In these actions (appeals) two rights may be concerned,—the right of possession, as is the case where a thing is robbed or stolen from the possession of one who had no right of property in it (for instance, where the thing had been lent, bailed, or let); and the right of property, as is the case where a thing is stolen or robbed from the possession of one to whom the property in it belongs.”3 The gist of the plaintiff’s right was, therefore, possession, either as owner or as bailee.4 On the death of an owner in possession of a charter the heir was constructively in possession, and could maintain trespass against one who anticipated him in taking physical possession of the charter.5
The bailor could not maintain an appeal, nor could he maintain the analogous Anefangsklage of the earlier Teutonic law.6 He had given up the possession to the bailee, retaining only a chose in action. For the same reason the bailor was not allowed, for many years, to recover damages in trespass. As early as 1323, however, and, doubtless, by the fiction that the possession of a bailee at will was the possession of the bailor also, the latter gained the right to bring trespass.7 In 1375 Cavendish, J., said, “He who has property may have trespass, and he who has custody another writ of trespass.” And Persay answered: “It is true, but he who recovers first shall oust the other of his action.”1 And this has been the law ever since, where the bailment was at the will of the bailor. The innovation was not extended to the case of the pledgor,2 or bailor for a term.3
This same distinction between a bailment at will and a bailment for a time is pointedly illustrated by the form of indictment for stealing goods from the bailee: “If the owner parts with the right of possession for a time, so as to be deprived of the legal power to resume the possession during that time, and the goods are stolen during that time, they cannot be described as the goods of such owner; but if the owner parts with nothing but the actual possession, and has a right to resume possession when he thinks fit, the goods may be described either as his goods, or his bailee’s. . . . The ground of the decision in Rex v. Belstead and Rex v. Brunswick was that the owner had parted with the right of possession for the time, he had nothing but a reversionary interest, and could not have brought trespass.”4
In like manner, it is probable that for an estray carried off trespass might have been brought by either the owner or the lord within the year and a day.5 A servant could not bring trespass unless he had been intrusted with goods as a bailee by or for his master.6 Nor could a servant maintain an appeal without his master.7
Trespass was an action for damages only,8i. e. a strictly personal action. But being a substitute for the appeal, which gave the successful appellor the stolen res, the measure of damages would naturally be the value of the stolen res. This was the rule of damages even though the action was brought by a bailee1 or by a trespasser against a second trespasser. The rule was at one time thought to be so inflexible as to deprive a bailee for a time of the right to bring trespass for a wrongful dispossession by his bailor. Hankford, J., said in one case: “Plaintiff shall not have the action, because then he would recover damages to the value of the beasts from him who owned them, and this is not right. But the plaintiff shall have an action on the case. But if a stranger takes beasts in my custody I shall have trespass against him and recover their value, because I am chargeable to my bailor who has the property, but here the case is different quod Hill and Culpepper, JJ., concesserunt.”2 It is needless to say that this is no longer law. The plaintiff has for centuries been allowed to recover in trespass against the bailor his actual loss.3 On the same principle it was once ruled that a plaintiff could not have trespass if his goods had been returned to him; “for, as Fulthorp, J., said, the plaintiff ought not to have his goods and recover value too, therefore he should recover damages in trespass on the case for the detainer.”4 But Paston, J., said the jurors should allow for the return of the chattel in assessing the damages, and his view has, of course, prevailed.5
The close kinship between the appeal and trespass explains the nature of the trespasser’s wrong to the plaintiff. A robber or thief dispossesses the owner with the design of excluding him from all enjoyment of the chattel. His act is essentially the same as that of one who ejects another from his land, i. e., a disseisin. Indeed, in many respects the recuperatory appeal of robbery or larceny is the analogue of the assize of novel disseisin. It is not surprising, therefore, to find that trespass for an asportation would not lie originally except for such a dispossession as in the case of land would amount to a disseisin.1 If, for instance, a chattel was taken as a distress, trespass could not be maintained.2 Replevin was the sole remedy. In 1447 the Commons prayed for the right to have trespass in case of distress where the goods could not be come at.3
In one respect trespass differed materially from the appeal and also from the assize of novel disseisin. The disseisee and the owner of the chattel could recover the land or the chattel from the grantee of the disseisor or thief. But the dispossessed owner of a chattel could not bring trespass for the value of the chattel against the grantee of the trespasser.4 Even here, however, the analogy did not really fail. Trespass was an action to recover damages for a wrong done to the plaintiff by taking the chattel from his possession. The grantee of the trespasser had done no such wrong. Therefore, no damages were recoverable, and the action failed altogether. Similarly the grantee of the disseisor had done no wrong to the disseisee, and therefore, while he must surrender the land, he was not obliged, prior to the Statute of Gloucester, to pay damages to the demandant.5 On the contrary, the demandant was in misericordia if he charged the grantee with disseisin.1 By the same reasoning, just as the dispossessed owner of a chattel could not have trespass against a second trespasser,2 so the demandant could not recover damages from a second disseisor.3 The wrong in each case was against the first trespasser or disseisor, who had gained the fee simple or property, although a tortious fee simple or property.
The view here suggested, that the defendant’s act in trespass de bonis asportatis was essentially the same as that of a disseisor in the case of land, has put the writer upon the track of what he believes to be the origin of the familiar distinction in the law of trespass ab initio between the abuse of an authority given by law, and the abuse of an authority given by the party, the abuse making one a trespasser ab initio in the one case but not in the other. As we have seen, replevin, and not trespass, was the proper action for a wrongful distress. If, however, when the sheriff came to replevy the goods, the landlord, claiming the goods as his own, refused to give them up, the replevin suit could not go on; the plaintiff must proceed either by appeal of felony, or by trespass.4 The defendant by this assumption of dominion over the goods and repudiation of the plaintiff’s right was guilty of a larceny and trespass. Even if the defendant allowed the sheriff to replevy the goods, he might afterwards in court stop the action by a mere assertion, without proof, of ownership. The plaintiff as before was driven to his appeal or trespass.5
Early in the reign of Edward III. the law was so far changed that the defendant’s claim of ownership would not defeat the replevin action unless made before deliverance of the goods to the sheriff.1 But the old rule continued, if the distrainor claimed ownership before the sheriff, until, by the new writ, de proprietate probanda, the plaintiff procured a deliverance in spite of the defendant’s claim and thus was enabled to continue the replevin action as in the case of a voluntary deliverance. But the resort to this writ was optional with the plaintiff. He might still, if he preferred, treat the recusant defendant as a trespasser. In Rolle’s Abridgment we read: “If he who has distrained detains the beasts after amends tendered before impounding, he is a trespasser ab initio. 45 Ed. III. 9 b. Contra, Co. 8, Six Carpenters, 147.”2
What was true in the case of a distress was equally true of an estray. “If the lord avow it to be his own, the person demanding it may either bring an action to recover his beast as lost (adirree) in form of trespass, or an appeal of larceny, by words of felony.”3 In 1454 Prisot, J., in answer to counsel’s suggestion that, if he lost a box of charters, he should have detinue, said: “I think not, for in your case you shall notify the finder and demand their surrender, and if he refuses, you shall have an action of trespass against him; for by the finding he did no wrong, but the tort began with the detention after notice.”4
On the other hand, a bailee who, in repudiation of his bailor’s rights, refused to give back the chattel on request was never chargeable as a thief or trespasser.5 Unlike the distrainor or finder, who took the chattel without the consent of the owner but by virtue of a rule of law, the bailee did not acquire the possession by a taking, but by the permission and delivery of the bailor. Hence it was natural to say that a subsequent tort made one a trespasser ab initio if he came to the possession of a chattel by act of law, but not if he came to its possession by act of the party. The rule once established in regard to chattels was then extended to trespasses upon realty and to the person.
The subsequent history of the doctrine of trespass ab initio is certainly curious. There seems to be no indication in the old books that anything but a refusal to give up the chattel would make the distrainor or finder a trespasser. But in the case, in which Prisot, C. J., gave the opinion already quoted, Littleton, of counsel, insisted that detinue and not trespass was the proper action against the distrainor or finder for refusal to give up the chattel on demand, but admitted that trespass would lie if they killed or used the chattel.1 Littleton’s view did not at once prevail.2 But it received the sanction of Coke, who said that a denial, being only a nonfeasance, could not make one a trespasser ab initio;3 and their opinion has ever since been the established law. A singular departure this of Littleton and Coke from the ancient ways—the doctrine of trespass ab initio inapplicable to the very cases in which it had its origin!
The gist of the action of trespass de bonis asportatis, as we have seen, was a taking from the plaintiff’s possession under a claim of dominion. The trespasser, like a disseisor, acquired a tortious property. Trespass, therefore, would not lie for a wrongful distress; for the distrainor did not claim nor acquire any property in the distress. This is shown by the fact that he could not maintain trespass or trover if the distress was taken from him on the way to the pound, or taken out of the pound,1 but must resort to a writ of rescous in the one case, and a writ of de parco fracto in the other case. In these writs the property in the distress was either laid in the distrainee, or not laid in any one.2
But the distrainee, although debarred from bringing trespass, was not without remedy for a wrongful distress. From a very early period he could proceed against the distrainor by the action, which after a time came to be known as Replevin. This action was based upon a taking of the plaintiff’s chattels and a detention of them against gage and pledge. Hence Britton and Fleta treat of this action under the heading “De Prises de Avers” and “De captione averiorum,” while in Bracton and the Mirrour of Justices the corresponding titles are “De vetito namio” and “Vee de Naam.” In the first part of this paper it was shown that the action of replevin was originally confined to cases of taking by way of distress,3 but that in the reign of Edward III. it became a concurrent remedy with trespass. But the change was for centuries one of theory rather than of practice. In the four hundred years preceding this century there are stray dicta, but, it is believed, no reported decision that replevin would lie against any adverse taker but a distrainor.1 We need not be surprised, therefore, at Blackstone’s statement that replevin “obtains only in one instance of an unlawful taking, that of a wrongful distress.”2 Lord Redesdale, in Shannon v. Shannon,3 dissented from this statement, saying that replevin would lie for any wrongful taking, and his opinion has been generally regarded as law.4 But the attempt to extend the scope of the action so as to cover a wrongful detention without any previous taking was unsuccessful.5 From what has been said, it is obvious that replevin has played a very small part in the history of trover, and we may therefore pass without more to the last and, for the purpose of the present essay, the most important of our four actions, the action of
The appeal, trespass, and replevin were actions ex delicto. Detinue, on the other hand, in its original form, was an action ex contractu, in the same sense that debt was a contractual action. It was founded on a bailment; that is, upon a delivery of a chattel to be redelivered.6 The bailment might be at will or for a fixed term, or upon condition, as in the case of a pledge. The contractual nature of the action is shown in several ways.
In the first place the count must allege a bailment, and a traverse of this allegation was an answer to the action.7
Again, detinue could not be maintained against a widow in possession of a chattel bailed to her during her marriage, because “ele ne se peut obliger.”1 Nor, for the same reason, would the action lie against husband and wife on a bailment to them both.2 Thirdly, on a bailment to two or more persons, all must be joined as defendants, for all were parties to the contract.3 On the same principle, all who joined in bailing a chattel must be joined as plaintiffs in detinue.4 On the other hand, on the bailment by one person of a thing belonging to several, the sole bailor was the proper plaintiff.5 For it was not necessary in detinue upon a bailment, as it was in replevin and trespass, to allege that the chattels detained were the “goods of the plaintiff.”6 Fourthly, the gist of the action of detinue was a refusal to deliver up the chattel on the plaintiff’s request; that is, a breach of contract. Inability to redeliver was indeed urged in one case as an objection to the action, although the inability was due to the active misconduct of the defendant. “Brown. If you bail to me a thing which is wastable, as a tun of wine, and I perchance drink it up with other good fellows, you cannot have detinue, inasmuch as the wine is no longer in rerum natura, but you may have account before auditors, and the value shall be found.” This, Newton, C. J., denied, saying detinue was the proper remedy.7 It may be urged that the detinue in this case was founded upon a tort. But in truth the gist of the action was the refusal to deliver on request. This is brought out clearly by the case of Wilkinson v. Verity.8 The defendant, a bailee, sold the chattel intrusted to his care. Eleven years after this conversion the bailor demanded the redelivery of the chattel, and upon the bailee’s refusal obtained judgment against him on the breach of the contract, although the claim based upon the tort was barred by the Statute of Limitations. The breach of contract is obvious where the bailee was charged in detinue for a pure nonfeasance, as where the goods were lost.1 Fifthly, bailees were chargeable in assumpsit, after that action had become the common remedy for the breach of parol contracts.2
Finally, we find, as the most striking illustration of the contractual nature of the bailment, the rule of the old Teutonic law that a bailor could not maintain detinue against any one but the bailee. If the bailee bailed or sold the goods, or lost possession of them against his will, the sub-bailee, the purchaser, and even the thief, were secure from attack by the bailor. This doctrine maintained itself with great persistency in Germany and France.3 In England the ancient tradition was recognized in the fourteenth century. In 1351 Thorpe (a judge three years later) said: “I cannot recover against any one except him to whom the charter was bailed.”4 Belknap (afterwards Chief Justice) said in 1370: “In the lifetime of the bailee detinue is not given against any one except the bailee, for he is chargeable for life.”5 Whether it was ever the law of England that the bailor was without remedy, if the bailee died in possession of the chattel, must be left an open question.6 In a case of the year 1323 it was generally agreed that the executor of a bailee was liable in detinue.1 But the plaintiff in that case, who alleged a bailment of a deed to A, and that the deed came to the hands of the defendant after A’s death, and that defendant refused to deliver on request, failed because he did not make the defendant privy to A as heir or executor. Afterwards, however, the law changed, and it was good form to count of a bailment to A, and a general devenerunt ad manus of the defendant after A’s death.2 Belknap’s statement also ceased to be law, and detinue was allowed in the lifetime of the bailee against any one in possession of the chattel.3 In other words, the transformation in the manner just described, of the bailor’s restricted right against the bailee alone, to an unrestricted right against any possessor of the chattel bailed, virtually converted his right ex contractu into a right in rem.
It is interesting to compare this transformation with the extension at a later period of the right of the cestuy que trust. In the early days of uses the cestuy que use could not enforce the use against any one but the original feoffee to uses. In 1482 Hussey, C. J., said: “When I first came to court, thirty years ago, it was agreed in a case by all the court that if a man had enfeoffed another in trust, if the latter died seised so that his heir was in by descent, that then no subpœna would lie.”4 Similarly, the husband or wife of the feoffee to uses were not bound by the use.5 Nor was there at first any remedy against the grantee of the feoffee to uses although he was a volunteer, or took with notice of the use, because as Frowicke, C. J., said, “The confidence which the feoffor put in the person of his feoffee cannot descend to his heir nor pass to the feoffee of the feoffee, but the latter is feoffee to his own use, as the law was taken until the time of Henry IV. [VI.?].”1 One is struck by the resemblance between this remark of the English judge and the German proverb about bailors: “Where one has put his trust, there must he seek it again.”2 The limitation of the bailor at common law, and the cestui que trust in equity, to an action or suit against the original bailee or trustee, are but two illustrations of one characteristic of primitive law, the inability to create an obligation without the actual agreement of the party to be charged.3
A trust, as every one knows, has been enforceable for centuries against any holder of the title except a purchaser for value without notice. But this exception shows that the cestui que trust, unlike the bailor, has not acquired a right in rem. This distinction is, of course, due to the fundamental difference between common-law and equity procedure. The common law acts in rem. The judgment in detinue is, accordingly, that the plaintiff recover the chattel, or its value. Conceivably the common-law judges might have refused to allow the bailor to recover in detinue against a bona fide purchaser, as they did refuse it against a purchaser in market overt. But this would have involved a weighing of ethical considerations altogether foreign to the medieval mode of thought. Practically there was no middle ground between restricting the bailor to an action against his bailee, and giving him a right against any possessor. Equity, on the other hand, acts only in personam, never decreeing that a plaintiff recover a res, but that the defendant surrender what in justice he cannot keep. A decree against a mala fide purchaser or a volunteer is obviously just: but a decree against an innocent purchaser, who has acquired the legal title to the res, would be as obviously unjust.
In all the cases of detinue thus far considered the action was brought by a bailor, either against the bailee or some subsequent possessor. We have now to consider the extension of detinue to cases where there was no bailment. Legal proceedings for the recovery of chattels lost were taken, in the earliest reported cases, in the popular courts. The common case was doubtless that of an animal taken as an estray by the lord of a franchise. If the lord made due proclamation of the estray, and no one claimed it for a year and a day, the lord was entitled to it. But within the year and day the loser might claim it, and if he produced a sufficient secta, or body of witnesses, to swear to his ownership or loss of the animal, it was customary for the lord to give it up, upon the owner’s paying him for its keep, and giving pledges to restore it in case of any claim for the same animal being made within the year and day.1 There is an interesting case of the year 1234, in which after the estray had been delivered to the claimant upon his making proof and giving pledges, another claimant appeared. It is to be inferred from the report that the second claimant finally won, as he produced the better secta.2 If the lord, or other person in whose hands the estray or other lost chattel was found, refused to give it up to the claimant, the latter might count against the possessor for his res adirata, or chose adirrée, that is, his chattel gone from his hand without his consent;3 or he might bring an appeal of larceny.4 According to Bracton, the pursuer of a thief was allowed “rem suam petere ut adiratam per testimonium proborum hominum et si consequi rem suam quamvis furatam.”1 This statement of Bracton, taken by itself, would warrant the belief that the successful plaintiff in the action for a chose adirrée had judgment for the recovery of the chattel. This may have been the fact; but it is difficult to believe that such a judgment was given in the popular court. No intimation of such a judgment is to be found in any of the earlier cases. It seems probable that Bracton meant simply that the plaintiff might formally demand his chattel in court as adiratum, and, by the defendant’s compliance with the demand, recover it. For, in the sentence immediately following, Bracton adds that if the defendant will not comply with his demand,—“si . . . in hoc ei non obtemperaverit,”—the plaintiff may proceed further and charge him as a thief by an appeal of larceny. This change from the one action to the other is illustrated by a case of the year 1233.2 The count for a chose adirrée is described in an early Year Book.3 The latest recognition of this action that has been found is a precedent in Novae Narrationes, f. 65, which is sufficiently interesting to be reproduced here in its original form.
De Chyval Dedit
Ceo vous monstre W. &c. que lou il avoit un son chival de tiel colour price de taunt, tiel jour an et lieu, la luy fyst cel cheval dedire [adirré], et il alla querant dun lieu en autre, et luy fist demander en monstre fayre & marche et de son chival ne poet este acerte, ne poet oier tanquam a tiel jour quil vient et trova son cheval en la garde W. de C. que illonques est s. en la gard mesme cesty W. en mesme la ville, et luy dit coment son chival fuit luy aderere et sur ceo amena suffisantz proves de prover le dit chival estre son, devant les baylliefz et les gentes de la ville, & luy pria qui luy fist deliveraunce, et il ceo faire ne voyleit ne uncore voet, a tort et as damages le dit W. de XX. s. Et sil voet dedire &c. [vous avez cy &c. que ent ad suit bon].
This count points rather to damages than to the recovery of the horse. It is worthy of note, also, that its place in the “Novae Narrationes” is not with the precedents in detinue, but with those in trespass. There seems to be no evidence of an action of chose adirrée in the royal courts. Nor has any instance been found in these courts of detinue by a loser against a finder prior to 1371.1 In that year a plaintiff brought detinue for an ass, alleging that it had strayed from him to the seignory of the defendant, and that he one month afterwards offered the defendant reasonable satisfaction (for the keep). Issue was joined upon the reasonableness of the tender.2 Detinue by a loser against a finder would probably have come into use much earlier but for the fact, pointed out in the first part of this paper, that the loser might bring trespass against a finder who refused to restore the chattel on request. Indeed, in 1455,3 where a bailiff alleged simply his possession, and that the charters came to the defendant by finding, Prisot, C. J., while admitting that a bailor might have detinue against any possessor of goods lost by the bailee, expressed the opinion that where there was no bailment the loser should not bring detinue, but trespass, if, on demand, the finder refused to give up the goods. Littleton insisted that detinue would lie, and his view afterwards prevailed. It was in this case that Littleton, in an aside, said: “This declaration per inventionem is a new-found Halliday; for the ancient declaration and entry has always been that the charters ad manus et possessionem devenerunt generally without showing how.” Littleton was quite right on this point.1 But the new fashion persisted, and detinue sur trover came to be the common mode of declaring wherever the plaintiff did not found the action upon a bailment to the defendant. In the first edition of “Liber Intrationum” (1510), f. 22, there is a count alleging that the plaintiff was possessed of a box of charters; that he casually lost it, so that it came to the hands and possession of the defendant by finding, and that he refused to give it up on request.2 The close resemblance between this precedent and the earlier one from “Novae Narrationes” will have occurred to the learned reader. But there is one difference. In the count for a chose adirrée, it is the plaintiff who finds the chattel in the defendant’s possession. In detinue sur trover the finding alleged is by the defendant. And until we have further evidence that the action in the popular courts was for the recovery of the chattel and not for damages only, it seems reasonable to believe that detinue sur trover in the king’s courts was not borrowed from the action of chose adirrée, but was developed independently out of detinue upon a general devenerunt ad manus. But whatever question there may be on this point, no one can doubt that detinue sur trover was the parent of the modern action of trover.
Add to the precedent in the “Liber Intrationum” the single averment that the defendant converted the chattel to his own use, and we have the count in trover.
It remains to consider how the action of trover at first became concurrent with detinue, and then effectually supplanted it until its revival within the last fifty years.
There were certain instances in which detinue, in its enlarged scope, and trespass, did not adequately protect owners of chattels. Neither of these actions would serve, for instance, if a bailee or other possessor misused the goods, whereby their value was diminished, but nevertheless delivered them to the owner on request. The owner’s only remedy in such a case was a special action on the case. We find such an action in the reports as early as 1461,1 the propriety of the action being taken for granted by both counsel and court.
If, again, after impairing the value of the goods, the bailee or other possessor refused to deliver them to the owner on request, detinue would of course lie. But the judgment being that the plaintiff recover his goods or their value with damages for the detention,2 if the defendant saw fit to restore the goods under the judgment, the plaintiff would still have to resort to a separate action on the case in order to recover damages for the injury to the goods. This was pointed out by Catesby in an early case,3 and later by Serjeant Moore.4 To prevent this multiplicity of actions, the plaintiff was allowed to bring an action on the case in the first instance, and recover his full damages in one action.
If a bailee destroyed the chattel bailed, the bailor, as we have seen, could recover its value in detinue. But if a possessor other than the owner’s bailee destroyed the chattel, if, for instance, the tun of wine which Brown and his “bons compagnons” drank up, in the case already mentioned, had come to the hands of Brown in some other way than through bailment by the owner, it is at least doubtful if the owner could have recovered the value of the wine in detinue. Brown, in this case, never agreed with the owner to give up the wine on request. The plaintiff in detinue must therefore show a detention, which would be impossible of goods already destroyed. This was the view of Brian, C. J. This conservative judge went so far, indeed, as to deny the owner an action on the case under such circumstances, but on this latter point the other justices were “in contraria opinione.”1
If case would lie against any possessor for misusing goods of another, and also against a possessor other than a bailee for the destruction of the goods, it was inevitable that it should finally be allowed against a bailee who had destroyed the goods. Such an action was brought against the bailee in a case of the year 1479,2 which is noteworthy as being the earliest reported case in which a defendant was charged with “converting to his own use” the plaintiff’s goods.3 Choke, J., was in favor of the action. Brian, C. J., was against it. Choke’s opinion prevailed.4
Later, a wrongful sale was treated as a conversion. In 1510 the judges said an action on the case would lie against a bailee who sold the goods because “he had misdemeaned himself.”5 In a word, trover became concurrent with detinue in all cases of misfeasance.
Trover also became concurrent with trespass. In 1601 the Court of King’s Bench decided that trover would lie for a taking.6 In the same year the Court of Common Pleas was equally divided on the question, but in 1604, in the same case, it was decided, one judge dissenting, that the plaintiff might have his election to bring trespass or case.7 The Exchequer gave a similar decision in 1610.1 In 1627, in Kinaston v. Moore,2 “semble per all the Justices and Barons, . . . although he take it as a trespass, yet the other may charge him in an action upon the case in a trover if he will.”
In all these cases the original taking was adverse. If, however, the original taking was not adverse, as where one took possession as a finder, a subsequent adverse holding, as by refusing to give up the goods to the owner on request, made the taker, according to the early authorities cited in the first part of this paper,3 a trespasser ab initio. Trover was allowed against such a finder in 1586, in Eason v. Newman,4 Fenner, J., citing the opinion of Prisot, C. J., that the owner could maintain trespass in such a case.
That trover was allowed in Eason v. Newman as a substitute for trespass, and not as an alternative of detinue, is evident, when we find that for many years after this case trover was not allowed against a bailee who refused to deliver the chattel to the bailor on request. The bailee was never liable in trespass, but in detinue. In 1638, in Holsworth’s Case,5 an attempt to charge a bailee in trover for a wrongful detention was unsuccessful, as was a similar attempt nine years later in Walker’s Case,6 “because the defendant came to them by the plaintiff’s own livery.” A plaintiff failed in a similar case in 1650.7 In the “Compleat Attorney,”8 published in 1666, we read: “This action (trover) properly lies where the defendant hath found any of the plaintiff’s goods and refuseth to deliver them upon demand; or where the defendant comes by the goods by the delivery of any other than the plaintiff.” But in 1675, in Sykes v. Wales,9 Windham, J., said: “And so trover lieth on bare demand and denial against the bailee.”
By these decisions trover became concurrent with detinue in all cases, except against a bailee who could not deliver because he had carelessly lost the goods.1 Indeed, trover in practice, by reason of its procedural advantages, superseded detinue until the present century.2
Although trover had now made the field of detinue and trespass its own, there was yet one more conquest to be made. Trespass, as the learned reader will remember, would not lie, originally, for a wrongful distress, the taking in such a case not being in the nature of a disseisin. In time, however, trespass became concurrent with replevin. History repeats itself in this respect, in the development of trover. In Dee v. Bacon,3 the defendant pleaded to an action of trover that he took the goods damage feasant. The plea was adjudged bad as being an argumentative denial of the conversion. Salter v. Butler4 and Agars v. Lisle5 were similar decisions, because, as was said in the last case, “a distress is no conversion.” The same doctrine was held a century later in two cases in Bunbury. But in 1770, in Tinkler v. Poole,6 these two cases, which simply followed the earlier precedents, were characterized by Lord Mansfield as “very loose notes,” and ever since that case it has been generally agreed that a wrongful distress is a conversion.
7 This last step being taken, trover became theoretically concurrent with all of our four actions, appeal of larceny, trespass, detinue, and replevin, and in practice the common remedy in all cases of asportation or detention of chattels or of their misuse or destruction by a defendant in possession. The career of trover in the field of torts is matched only by that of assumpsit, the other specialized form of action on the case, in the domain of contract.
The parallel between trover and assumpsit holds good not only in the success with which they took the place of other common-law actions, but also in their usurpation, in certain cases, of the function of bills in equity. A defendant who has acquired the legal title to the plaintiff’s property by fraud or duress, is properly described as a constructive trustee for the plaintiff. And yet if the res so acquired is money, the plaintiff may have an action of assumpsit for money had and received to his use; and if the res is a chattel other than money, the plaintiff is allowed, at least in this country, to sue the defendant in trover.1 In some cases, indeed, an express trustee is chargeable in trover, as where an indorsee for collection refuses to give back the bill or note to the indorser. Lord Hardwicke, it is true, had grave doubts as to the admissibility of trover in such a case;2 but Lord Eldon reluctantly recognized the innovation.3 This innovation, it should never be forgotten, was a usurpation. Trover as a substitute for a bill in equity is, and always must be, an anomaly.
[1 ]This Essay was first published in the Harvard Law Review, 1897-1898, vol. XI, pp. 277-289, 374-386.
[2 ]A biographical note of this author is prefixed to Essay No. 43, in Volume II of this Collection. Additions are in brackets.
[1 ]“This appeal is not a real or personal action . . . the woman (appellor) is seeking vengeance for the death of her husband.” Y. B. 9 Hen. IV. f. 2, pl. 8. The compensatory appeals, in their origin, were likewise actions for vengeance. 1 Nich. Britt. 124; Fleta, Lib. I. cap. 40, 42; Y. B. 18 Ed. III. f. 20, pl. 31; 2 Pollock & Maitland, Hist. Eng. Law, 487.
[2 ]Glanvil, Bk. 10, ch. 15-17; Bract. 150 b-152; 1 Nich. Britt. 55-60; Fleta, Lib. I. ch. 38; see also Mirror of Justices, Seld. Soc’y, Bk. III. c. 13.
[1 ]Northumberland Assize Rolls, 79 (40 Hen. III.). “Stephanus de S . . . captus fuit cum quodam equo furato per sectam Willelmi T. et decollatus fuit, praesente ballivo domini Regis, et praedictus equus deliberatus fuit praedicto W. qui sequebatur pro equo illo in pleno comitatu.” In 1271 one Margaret appealed Thomas and Ralph for killing her brothers. But she was imprisoned for her false appeal, since Thomas and Ralph, who had pursued and beheaded her brothers as thieves taken with the “mainour,” had acted according to the law and custom of the realm. Pl. Ab. 184, col. 1, rot. 24. This custom was condemned by the justices, in 1302, who said that one who had beheaded a manifest thief should be hanged himself. Y. B. 30 & 31 Ed. I. 545. See 2 Pollock & Maitland, Hist. Eng. Law, 495.
[2 ]Bract. Note Book, No. 824.
[3 ]As early as 1319 the rule was established that a thief taken with the “mainour” could not defend an appeal by wager of battle, but must put himself upon the jury; “for the appeal has two objects, to convict the thief and to recover the stolen chattel, and the law recognizes that the thief, though guilty, might by bodily strength vanquish the appellor and thus keep the chattel without reason.” Fitz. Cor. 375. See also Fitz. Cor. 157, 125, 100, 268.
[4 ]Book X. ch. 16.
[5 ]Sel. Pl. of Crown, 1 Seld. Soc’y, No. 124.
[6 ]Bract. Note Book, No. 1435.
[1 ]Sel. Pl. of Crown, 1 Seld Soc’y, No. 192; Bract. Note Book, No. 67.
[2 ]Sohm, Der Process d. Lex. Salica; Jobbé-Duval, La Revendication des Meubles; Brunner, Rechtsgeschichte, 1st ed., I. 495 et seq.; Schroeder, Lehrbuch d deutschen Rechtsgeschichte, 346 et seq.
[3 ]Y. B. 8 Ed. III f. 10, pl. 30. See also Y. B. 1 Hen. IV. f. 4, pl. 5; Y. B. 7 Hen. IV. f. 31, pl. 16; Y. B. 7 Hen. IV. f. 43, pl. 9; Roper’s Case, 2 Leon. 108. In a case cited in Sel. Pl. Ct. Adm. 6 Seld. Soc’y, XL., restitution was ordered in the Admiralty Court “because by the law maritime the ownership of goods taken by pirates is not divested unless the goods remain in the pirates’ possession for a night.” See also Y. B. 7 Ed. IV. f. 14, pl. 5; and compare Y. B. 22 Ed. III. f. 16, pl. 63.
[1 ]Y. B. 30 & 31 Ed. I. 527.
[2 ]Fitz. Cor. 379 (12 Ed. II.). See also Y. B. 30 & 31 Ed. I. 509; Y. B. 30 & 31 Ed. I. 513; Fitz. Cor. 392 (8 Ed. II.); Fitz. Cor. 190, criticising Y. B. 26 Lib. Ass. 17.
[3 ]Dickson’s Case, Hetley, 64. But see Rook and Denny, 2 Leon. 192.
[4 ]Y. B. 8 Ed. III. f. 10, pl. 30; Fitz. Avow. 151, per Schardelow, J.
[5 ]Fitz. Cor. 367 (3 Ed. III.).
[6 ]Y. B. 44 Ed. III. f. 44, pl. 57; Fitz. Cor. 95. But see Y. B. 7 Hen. IV. f. 31, pl. 16, Fitz. Cor. 21; and compare Y. B. 4 Ed. IV. f. 11, pl. 16, Fitz. Cor. 26.
[1 ]Fitz. Cor. 318 (3 Ed. III.).
[2 ]Y. B. 30 Ed. I. 527; Fitz. Cor. 162 (3 Ed. III.). But see Fitz. Cor. 380 (12 Ed. II.) semble, and Y. B. 26 Lib. Ass. 32, Fitz. Cor. 194 (semble), contra.
[3 ]Y. B. 4 Ed. IV. f. 11, pl. 16, Fitz. Cor. 26. But see contra, Fitz. Cor. 379 (12 Ed. II.) and Fitz. Forf. 15 (44 Ed. III.). In the last half of the fourteenth century this rule was so far relaxed that the pursuer might recover his chattels if the conviction of the thief was prevented by his standing mute. Y. B. 26 Lib. Ass. 17; Y. B. 44 Lib. Ass. 30; Y. B. 8 Hen. IV. f. 1, pl. 2, Fitz. Cor. 71; or claiming benefit of clergy: Y. B. 1 Hen. IV. f. 4, pl. 5; Y. B. 10 Hen. IV. f. 5, pl. 18, Fitz. Cor. 466; Y. B. 2 R. III. f. 12, pl. 31; Y. B. 3 Hen. VII. f. 12, pl. 10.
[4 ]Supra, n. 2, p. 419.
[5 ]The appellor succeeded in doing so in the case reported in Sel. Pl. Cor., 1 Seld. Soc’y, No. 192, and the champion with special leniency was condemned to the loss of one of his feet, instead of losing both foot and fist.
[1 ]As there was no appeal for a trespass upon land, Sel. Pl. Cor. (Seld. Soc’y), No. 35, the action of trespass quare clausum fregit was brought into the royal courts directly from the popular courts.
[2 ]In one case the defendant offered wager of battle and the plaintiff agreed, but the court would not allow it. Y. B. 32 & 33 Ed. I. 319.
[1 ]Bract. 151. To the same effect, Bract. 103 b, 146 a.
[2 ]1 Nich. Britt. 56; Fleta, Lib. 1, c. 39.
[3 ]Book II. c. 16 (Seld. Soc’y).
[4 ]For instances of appeals by bailees see Sel. Pleas of the Crown, Nos. 88 and 126, and for a recognition of the bailee’s right in later times Fitz. Cor. 100 (45 Ed. III.); Y. B. 2 Ed. IV. f. 15, pl. 7; Keilw. 70, pl. 7.
[5 ]Y. B. 16 Ed. II. 490; Y. B. 1 Ed. III. f. 22, pl. 11. The owner could not have the action against a second trespasser, for the possession of the first trespasser, being adverse to owner, could not be regarded as constructively the owner’s
[6 ]1 Brunner, Deutsche Rechtsgeschichte, 509.
[7 ]Y. B. 16 Ed. II. 490; Y. B. 5 Ed. III. f. 2, pl. 5.
[1 ]Y. B. 48 Ed. III. f. 20. pl. 16.
[2 ]Y. B. 10 Hen. VI. f. 25, pl. 86.
[3 ]Ward v. Macaulay, 4 T. R. 489.
[4 ]Per Bayley, B., as cited in 2 Russ. Crimes (5th ed.), 245. The same distinction is made in 1 Hale P. C. 513.
[5 ]Y. B. 20 Hen. VII. f. 1, pl. 1. But in this same case the right of a distrainor to have trespass was denied.
[6 ]Y. B. 2 Edw. IV. f. 15, pl. 7, per Littleton; Heydon’s Case, 13 Rep. 69; Bloss v. Holman, Ow. 52, per Anderson, C. J.; Goulds. 66, pl. 10, 72, pl. 18, s. c.
[7 ]The master could bring an appeal against a thief and offer to prove by the body of his servant who saw the theft, and the servant would accordingly charge the appellee of the same theft, and offer to prove by his body. 1 Rot. Cur. Reg. 51; 3 Bract. Note Book, No. 1664. See also Y. B. 30 & 31 Ed. I. 542; Fitz. Replev. 32 (19 Ed. III.).
[8 ]Pl. Ab. 336, col. 2, rot. 69 (14 Ed. II.); ibid. 346, col. 2, rot. 60 (17 Ed. II); Y. B. 1 Hen. IV. f. 4, pl. 5.
[1 ]Y. B. 11 Hen. IV. f. 23, pl. 46; Y. B. 8 Ed. IV. f. 6, pl. 5; Heydon’s Case, 13 Rep. 67, 69; Swire v. Leach, 18 C. B. n. s. 479. There are numerous cases in this country to the same effect. See, however, Claridge v. South Staffordshire Co., , 1 Q. B. 422. [Overruled by The Winkfield  P. 42.]
[2 ]Y. B. 11 Hen. IV. f. 23, pl. 46.
[3 ]Heydon’s Case, 13 Rep. 67, 69; Brierly v. Kendall, 17 Q. B. 937.
[4 ]Y. B. 21 Hen. VI. f. 15, pl. 29.
[5 ]Br. Ab. Tresp 221, 130; Chinnery v. Vial, 5 H. & N. 288, 295. See also Y. B. 21 & 22 Ed. I. 589. [Y. B. 1 Hen. VI. 7, pl. 30.]
[1 ]Trespass for the destruction of a chattel has been allowed from very early times. Y. B. 1 Ed. II. 41: Y. B. 11 Ed. II. 344; Y. B. 2 Ed. III. f. 2, pl. 5; Watson v. Smith, Cro. El. 723. There is in the Registrum Brevium no writ of trespass for a mere injury to a chattel, not amounting to its destruction. Presumably it was thought best that plaintiffs should seek redress for such minor injuries in the popular courts. There is an instance of such an action in 1247 in a manorial court of the Abbey of Bec. Sel. Pl. Man. Ct. (Seld. Soc’y) 10. In later times the remedy in the King’s Bench was by an action on the case. Slater v. Swan, 2 Stra. 872. See also Marlow v. Weekes, Barnes’ Notes, 452. Finally, trespass was allowed without question raised. Dand v. Sexton, 3 T. R. 37.
[2 ]Pl. Ab. 265, col. 2, rot 8 (32 Ed. I.)
[3 ]5 Rot. Parl. 139 b. (The petition ibid. 399 a seems to be the same petition.)
[4 ]Y. B. 21 Ed. IV. f. 74, pl. 6; Day v. Austin, Ow. 70; Wilson v. Barker, 4 B. & Ad. 614.
[5 ]Bract. 164, 172, 175 b; 2 Bract. Note Book, No. 617; Y. B. 37 Hen. VI. f. 35, pl. 22; Y. B. 13 Hen. VII. f. 15, pl. 11; Symons v. Symons, Hetl. 66.
[1 ]2 Bract. Note Book, Nos. 617 and 1191.
[2 ]Y. B. 21 Ed. IV. f. 74, pl. 6. See Essay No. 67, post.
[3 ]Br. 172.
[4 ]“If the taker or detainer admit the bailiff to view, and avow the thing distrained to be his property, so that the plaintiff has nothing therein, then the jurisdiction of the sheriff and bailiff ceases. And if the plaintiff is not a villein of the deforcer, let him immediately raise hue and cry; and at the first county court let him sue for his chattel, as being robbed from him, by appeal of felony if he thinks fit to do so.” 1 Nich. Britt. 138. In Y. B. 21 & 22 Ed. I. 106, counsel being asked why the distrainor did not avow ownership when the sheriff came, answered: “If we had avowed ownership he would have sued an appeal against us.”
[5 ]Y. B. 32 & 33 Ed. I. 54.
[1 ]The argument of the defendant, “And although we are come to court on your suit, we shall not be in a worse plight here than before the sheriff; for you shall be driven to your writ of trespass or to your appeal, and this writ shall abate,” though supported by the precedents, was overruled. Y. B. 5 Ed. III. f. 3, pl. 11; see Essay No. 67, post.
[2 ]2 Roll. Ab. 561 [G], 7. The Year Book supports Rolle.
[3 ]1 Nich. Britt. 68. See ibid. 215: “No person can detain from another birds or beasts, ferae naturae, which have been domesticated, without being guilty of robbery or of open trespass against our peace, if due pursuit be made thereof within the year and day, to prevent their being claimed as estrays.”
[4 ]Y. B. 33 Hen. VI. f. 26, pl. 12.
[5 ]Y. B. 16 Hen. VII. f. 2, pl. 7; 1 Ames & Smith, Cases on Torts. 252, 253, n. 1.
[1 ]“If I refuse to give up the distress, still he shall not have trespass against me, but detinue, because it was lawful at the beginning when I took the distress; but if I kill them or work them for my own account, he shall have trespass. So here, when he found the charters it was lawful, and although he did not give them up on request, he shall not have trespass, but detinue against me, for no trespass is done yet; no more than where one delivers goods to me to keep and redeliver to him, and I detain them, he shall never have trespass, but detinue against me causa qua supra.” Y. B. 33 Hen. VI. f. 26, pl. 12.
[2 ]See Littleton’s own statement when judge in Y. B. 13 Ed. IV. f. 6, pl. 2. According to Y. B. 2 Rich. III. f. 15, pl. 39: “It was said by some that if one loses his goods and another finds them, the loser may have a writ of trespass if he will, or a writ of detinue.” In East v. Newman (1595), Golds. 152, pl. 79, a finder who refused to give up the goods to the owner was held guilty of a conversion, Fenner, J., saying: “For when I lose my goods, and they come to your hands by finding, and you deny to deliver them to me, I shall have an action of trespass against you, as 33 Hen. VI. is.”
[3 ]Isaac v. Clark, 1 Roll. R. 126.
[1 ]“The distrainor neither gains a general nor a special property, nor even the possession in the cattle or things distrained; he cannot maintain trover or trespass. . . . It is not like a pledgee, for he has a property for the time; and so of a bailment of goods to be redelivered, bailee shall have trespass against a stranger, because he is chargeable over.” Per Parker, C. B., Rex v. Cotton, Parker, 113, 121. See also Y. B. 21 Hen. VII. f. 1, pl. 1; Whitly v. Roberts, McClell. & Y. 107, 108; 2 Selw. N. P. (1st ed.) 1362; 2 Saund. (6th ed.) 47 b, n. (c).
[2 ]“He shall not show in the writ to whom the property of the cattle doth appertain, unless he choose to do so.” Fitz. N. B. 100. Compare Bursen v. Martin, Cro. Jac. 46, Yelv. 36, 1 Brownl. 192, s. c., in which case a count in trespass “Quare equum cepit a persona querentis” was adjudged bad for not alleging the horse to be “suum.”
[3 ]Supra, p. 428. See also Essay No. 67, post.
[1 ]See Mellor v. Leather, 1 E. & B. 619. Replevin against one, who took as finder, was allowed in Taylor v. James, Godb. 150, pl. 195.
[2 ]3 Bl. Com. 146.
[3 ]1 Sch. & Lef. 327.
[4 ]George v. Chambers, 11 M. & W. 149.
[5 ]Mennie & Blake, 6 E. & B. 847. In many jurisdictions in this country, however, with or without the aid of a statute, replevin became concurrent with detinue.
[6 ]A buyer could also bring detinue against the seller for the chattel sold but not delivered. But the position of the seller after the bargain was essentially that of a bailee. For an early case of detinue by a buyer, see Sel. Pl. Man. Cts., 2 Seld. Soc’y (1275), 138. The count for such a case is given in Novæ Narrationes, f. 68. See also Y. B. 21 Ed. III. f. 12, pl. 2.
[7 ]Y. B. 3 Ed. II. 78; Y. B. 6 Ed. II. 192. Compare Y. B. 20 & 21 Ed. I. 193. After the scope of detinue was enlarged, a traverse of the bailment became an immaterial traverse. Gledstane v. Hewitt, 1 Cr. & J. 565; Whitehead v. Harrison, 6 Q. B. 423, in which case the court pointed out a serious objection to the modern rule.
[1 ]Y. B. 20 & 21 Ed. I. 189.
[2 ]Y. B. 38 Ed. III. f. 1, pl. 1; 1 Chitty Pl. (7th ed.) 104, 138.
[3 ]Y. B. 7 Hen. IV. f. 6, pl. 37.
[4 ]Atwood v. Ernest, 13 C. B. 881.
[5 ]Y. B. 8 Ed. II. 270; Y. B. 49 Ed. III. f. 13, pl. 6, because “they (the owners) were not parties to the contract and delivery;” Bellewe, Det. Charters, 13 R. II.
[6 ]Whitehead v. Harrison, 6 Q. B. 423, citing many precedents.
[7 ]Y. B. 20 Hen. VI. f. 16, pl. 2. To the same effect, 7 Ed. III., Stath. Abr., Detinue, pl. 9; Y. B. 17 Ed. III. f. 45, pl. 1; 20 Ed. III., Fitz. Abr. Office del Court, 22.
[8 ]L. R. 6 C. P. 206; Ganley v. Troy Bank, 98 N. Y. 487, accord.
[1 ]Reeve v. Palmer, 5 C. B. n. s. 84. The early authorities are cited by Professor Beale in Essay No. 54, ante.
[2 ]Wheatley v. Lowe, Palm. 28; Cro. Jac. 668, s. c. See Essay No. 59, ante.
[3 ]Heusler, Die Gewere, 487; Carlin, Niemand kann auf einen Anderen mehr Recht ubertragen als er selbst hat, 42, 48; Jobbé-Duval, La Revendication des Meubles, 80, 165.
[4 ]Y. B. 24 Ed. III. f. 41, A, pl. 22.
[5 ]Y. B. 43 Ed. III. f. 29, pl. 11.
[6 ]In Sel. Cas. in Ch., 10 Seld Soc’y No. 116 (1413-1417), a plaintiff, before going to Jerusalem, had bailed a coffer containing title deeds and money to his mother. The mother died during his absence, and her husband, the plaintiff’s stepfather, refused to give up the coffer to the son on his return. The plaintiff brought his bill in chancery alleging that “because he [stepfather] was not privy or party to the delivery of the coffer to the wife no action is maintainable at common law, to the grievous damage,” etc., “if he be not succoured by your most gracious lordship where the common law fails him in this case.” See also Y. B. 20 & 21 Ed. I. 189.
[1 ]Y. B. 16 Ed. II. 490.
[2 ]Y. B. 29 Ed. III. 38, B, per Wilby, J.; Y. B. 9 Hen. V. f. 14, pl. 22; Y. B. 9 Hen. VI. f. 58, pl. 4. Paston, J. “The count is good enough notwithstanding he does not show how the deed came to defendant, since he has shown a bailment to B. (original bailee) at one time.” Martin, J. “He ought to show how it came to defendant.” Paston, J. “No, for it may be defendant found the deed, and if what you say is law, twenty records in this court will be reversed.”
[3 ]Y. B. 11 Hen. IV. f. 46, B, pl. 20; Y. B. 12 Ed. IV. f. 11, pl. 2, and f. 14, pl. 14; Y. B. 10 Hen. VII. f. 7, pl. 14.
[4 ]Y. B. 22 Ed. IV. f. 6, pl. 22. In Keilw. 42, pl. 7, Vavasour, J., said, in 1501, that the subpœna was never allowed against the heir until the time of Henry VI., and that the law on this point was changed by Fortescue, C. J.
[5 ]Ames, Cases on Trusts (2d ed.), 374, n.
[1 ]Anon., Keilw. 46, pl. 7. See also Ames, Cases on Trusts (2d ed.), 282-285.
[2 ]Wo man seinen Glauben gelassen hat, da muss man ihn wieder suchen.
[3 ]This same inability explains the late development of assumpsit upon promises implied in fact, and of quasi-contracts. The necessity of the invention of the writ quare ejecit infra terminum as a remedy for a termor, who had been ousted by his landlord’s vendee, was due to this same primitive conception, for the vendee was not chargeable by the landlord’s contract.
[1 ]Sel. Pl. Man. Cts., 2 Seld. Soc’y (1281), 31. “Maud, widow of Reginald of Challon, has sufficiently proved that a certain sheep (an estray) valued at 8d. is hers, and binds herself to restore it or its price in case it shall be demanded from her within year and day; pledges John Ironmonger and John Roberd; and she gives the lord 3d. for his custody of it.” There is a similar case in the Court Baron, 4 Seld. Soc’y (1324), 144.
[2 ]3 Bract. Note Book, No. 1115.
[3 ]Adiratus is doubtless a corruption of adextratus, i. e., out of hand. In the precedents of trover and detinue sur trover in Coke’s Entries, the plaintiff alleged that he casually lost the chattel “extra manus et possessionem.” Co. Ent. 38, pl. 31; 40, pl. 32; 169, d, pl. 2.
[4 ]“And if the lord avow it to be his own, the person demanding it may either bring an action to recover his beast as lost (adirrée), in form of trespass, or an appeal of larceny by words of felony.” Britton, f. 27. See also Britton, f. 46.
[1 ]Bract. 150 b. See also Fleta, 55, 63.
[2 ]2 Bract. Note Book, No. 824. The plaintiff “dixit quod idem Willelmus in pace dei et Dom. Regis et ballivorum in juste detinuit ei tres porcos qui ei fuerunt addirati, et inde producit sectam quod porci sui fuerunt et ei porcellati et postea addirati.” William disputed the claim, and the plaintiff then charged William as the thief “et parata fuit hoc disracionare versus eum, sicut femina versus latronem, quod legale catallum suum nequiter ei contradixit.”
[3 ]20 Ed. I. 466. “Note that where a thing belonging to a man is lost (endire), he may count that he (the finder) tortiously detains it, etc., and tortiously for this that whereas he lost (ly fut endire) the said thing on such a day, etc., he (the loser) on such a day, etc., and found it in the house of such an one and told him, etc., and prayed him to restore the thing, but that he would not restore it, etc., to his damage, etc.; and if he will, etc. In this case the demandant must prove by his law (his own hand the twelfth) that he lost the thing.”
[1 ]In Y. B. 2 Ed. III. f. 2, pl. 5, there is this dictum by Scrope, J.: “If you had found a charter in the way, I should have a recovery against you by præcipe quod reddat.”
[2 ]Y. B. 44 Ed. III. f. 14, pl. 30. See also 13 Rich. II., Bellewe, Det. of Chart. Detinue against husband and wife. Count that they found the charters.
[3 ]Y. B. 33 Hen. VI. f. 26, pl. 12.
[1 ]Littleton’s remark seems to have been misapprehended in 2 Pollock & Maitland, 174. The innovation was not in allowing detinue where there was no bailment, but in describing the defendant as a finder. The old practice was to allege simply that the goods came to the hands of the defendant, as in Y. B. 3 Hen. VI. f. 19, pl. 31. See also Isaac v. Clark, 1 Bulst. 128, 130. In 1655 it was objected to a count in trover and conversion that no finding was alleged, but only a devenerunt ad manus. The objection was overruled Hudson v. Hudson, Latch, 214.
[2 ]A similar count in Lib. Int. f. 71.
[1 ]Y. B. 33 Hen. VI. f. 44, pl. 7. See also Y. B. 9 Hen. VI. f. 60, pl. 10; Y. B. 2 Ed. IV. f. 5, pl. 9, per Littleton; Y. B. 12 Ed. IV. f. 13, pl. 9; Rook v. Denny, 2 Leon. 192, pl. 242.
[2 ]See Williams v. Archer, 5 C. B. 318, for the form of judgment in detinue.
[3 ]Y. B. 18 Ed. IV. f. 23, pl. 5: “If I deliver my clothes to you to keep for me, and you wear them so that they are injured, I shall have an action of detinue, . . . and afterwards an action on the case for the loss sustained by your using the clothes.”
[4 ](1510) Keilw. 160, pl. 2.
[1 ]Y. B. 12 Ed. IV. f. 13, pl. 9. See also Y. B. 9 Ed. IV. f. 53, pl. 15, per Billing, J.
[2 ]Y. B. 18 Ed. IV. f. 23, pl. 5.
[3 ]The allegation of conversion occurs again in Y. B. 20 Hen. VII. f. 4, pl. 13; Y. B. 20 Hen. VII. f. 8, pl. 18; Mounteagle v. Worcester (1556), Dy. 121 a. The earliest precedents using the words “converted to his own use” are in Rastall’s Entries, 4, d, pl. 1 (1547) Ibid. 8, pl. 1. In the reign of Elizabeth it was common form to count upon a finding and conversion.
[4 ]Y. B. 18 Ed. IV. f. 23, pl. 5; Y. B. 27 Hen. VIII. f. 25, pl. 3. “It is my election to bring the one action or the other, i. e., detinue or action on my case at my pleasure.”
[5 ]Keilw. 160, pl. 2. To same effect, Vandrink v. Archer, 1 Leon. 221, a sale by a finder. The judges thought, however, that an innocent sale would not be conversion. But this dictum is overruled by the later authorities. Consol. Co. v. Curtis,  1 Q. B. 495; 1 Ames & Smith, Cases on Torts, 328, 333, n. 4.
[6 ]Basset v. Maynard, 1 Roll Ab. 105 (M), 5.
[7 ]Bishop v. Montague, Cro. El. 824, Cro. Jac. 50.
[1 ]Leverson v. Kirk, 1 Roll. Ab. 105 (M), 10.
[2 ]Cro. Car. 89.
[3 ]Supra, 429.
[4 ]Goldesb. 152, pl. 79; Cro. El. 495, s. c.
[5 ]Clayt. 57, pl. 99.
[6 ]Clayt. 127, pl. 227.
[7 ]Strafford v. Pell, Clayt. 151, pl. 276.
[8 ]p. 86.
[9 ]3 Keb. 282. See also Scot and Manby’s Case (1664), 1 Keb. 449, per Bridgman.
[1 ]Even here the bailee was chargeable in case, i. e. assumpsit.
[2 ]In 1833, the defendant in detinue lost his right to defend by wager of law, and by the Common Law Procedure Act of 1854, c. 78, the plaintiff gained the right to an order for the specific delivery of the chattel detained. Under the influence of these statutory changes, detinue has regained some of its lost ground.
[3 ]Cro. El. 435.
[4 ]Noy, 46.
[5 ]Hutt. 10.
[6 ]5 Burr. 2657.
[7 ]1 Ames & Smith, Cases on Torts, 274, n. 3.
[1 ]Thurston v. Blanchard, 22 Pick. 18; 1 Ames & Smith, Cases on Torts, 287, 288, n. 2.
[2 ]Ex parte Dumas, 2 Ves. 583.
[3 ]Ex parte Pease, 19 Ves. 46: “If the doctrine of those cases is right, in which the court has struggled upon equitable principles to support an action of trover, these bills might be recovered at law; but there is no doubt that they might be recovered by a bill in equity.”