The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Barr in Detinus; 1. Of Chattels. 2. Of Deeds.

Accord is a good plea in Detinue of any goods personal, Coke 9. part. 78. B. Petoes case; but not of real.

Barr that the goods were attached and delive∣red to him, only the custome of the City, Lib. Intr. 112. C. sect. 5. of London can warrant this plea in London.

A lent Sheep to a Woman sole, which took a Husband, which commanded the owner to take them again, who refused; this is a good barr as to the bailment in Detinue, 43 Edw. 3.21.10. for by the intermarriage the husband had power to redeliver the goods.

A good barr that they were lent to deliver over, of the which he had a deed, Nat. br. 138. M. to prove it. Quaere, whether he ought not to plead in Curia hic prolat.

A good plea by the Executor upon bailment to the Testator, that he, viz. the Executor, had de∣livered them to him that had the right in the goods, 9 Hen. 6.58. A.

Detinue is no plea, that the Plaintiff gave him the goods, because he may wage his Law, 22 Edw. 4.29. pl. 10. that the goods were not delivered to him to redeliver.

Detinue upon Trover, the Defendant pleads, that he did distrain for Rent reserved upon a Lease, a good barr, 27 Hon. 8.22. pl. 15. for here can be no Trover.

In Detinue of a Horse, a good plea that he did estray into his ground, and that he proclaimed him and offered the Horse to the owner, if he would pay for his meat, which he refused to do, No. Lib. Intr. 169. D. sect. 2. for such a detainer is lawful.

A good barr to say, the Horse was sick in De∣tinue at the time of the demand, 21 Edw. 4. De∣tinue br. 42. and so could not be delivered without danger of his death; and the Law loves the pre∣servation of things, and not their destruction.

Non detinet a good barr, Lib. Intra. 211. D. sect. 1. & 2. fol. 112. C. sect. 4, & 5. for it is di∣rectly contrary to the supposal of the Writ, and so a good issue is tendred.

And this may be by the Countrey, Lib. Intra. 211. D. Sect. 1, and 112. Sect. 4. C. viz. tried by a Jury as matter in fact.

Or by wager of Law, 22 Edw. 4.29. pl. 10. Lib. Intra. 112. C. Sect. 5. 5 Edw. 3. 145. pl. 4. 27 Edw. 3.83. pl. 6. 4 Edw. 3.41. by the Oath of the Defendant.

Although the bailment be by deed, for the Detinet is the substance of the Action, 27 Hen. 8.22. pl. 14. and not the bailment.

An Executor may wage his Law, 11 Hen. 6.40. pl. 25. 3 Hen. 6.38. Martin, of a bailment made to the Testator. Quaere, or whether upon the detinet.

Non detinet by the Law gager, although the bailment be by others hands, 8 Hen. 6.10. pl. 26. 33 Hen. 6.8. B. Moyle, is a good barr.

If an Executor pays a debt of the Bailors to the value of the goods, and dies, this is a good barr in Detinue brought against the surviving Ex∣ecutor, 3 Eliz. Dyer 187. pl. 6. Q

The Defendant said, that the Plaintiff pledged them for money, which is not paid; this is a good barr, 34 Hen. 6.42. pl. 13. for here is no bail∣ment, but the goods are in custody of the Law.

Corn is lent, &c. and it perisheth; this is no barr, Doct. & Stud. 129. A. in a Detinue for the Corn, for the Borrower ought to make it good at his own peril.

A Horse used in other manner than was agreeds no barr if he perish. Vid. antea; for he is a trust abused, which the Law hates.

But if he be used in the same manner, if he perish not in desault of the party to whom he was lent, it is a good barr, Doct. & Stud. 129. A. for here was no trust deceived, nor fault in the Bai∣lee.

No plea for a Carrier or Ferryman, that he was robbed, Coke 4. part. 84. Southcots case, 〈◊〉〈◊〉 Hen. 7.11. B. Townsend, but they must take their remedy against the Thieves, and they are by Law answerable to the owners of the goods.

So if goods are delivered to keep, Coke 4. part. 83. B. for such an acceptance implies a war∣ranty

to keep them safe, and to redeliver them.

But it is a good plea, if they are taken to keep as my own, Coke 4. part. 83. for there is no such warranty implied. Vid. antea.

Recovery in Trespass a good barr in Detinue, 20 Hen. 7.58. B. Crooke; for there shall not be a double recovery for one thing.

The bailment is not traversable where he may wage his Law, 8 Edw. 4.3. pl. 7. for there his Oath that he detains not is sufficient; for if he detains not, there could be no bailment.

No barr that the Horse was sold in a Market overt, unless it were tolled, according to the Sta∣tute, 1 & 2 Phil. & Mariae, cap. 7. for no property is altered by such a sale. Vid. antea.

Detinue for Deeds as Heir, Bastardy is a good plea, 35 Hen. 6.9. pl. 12. for if a Bastard, he is no Heir.

A bailed to B to rebail, and dies, having two Sons, which makes partition, he which had the Land comprehended in the deed delivered en∣feoffs B; this is a good barr, 17 Edw. 3.12. pl. 45. for by the purchase the deed belongs to B.

Warranty and Assets is no barr against the issue in Tail in Detinue, 9 Hen. 6.15. pl. 5. 4 Hen. 7.10. pl. 4. for he comes in by the Donor.

Rebailment in another County a good barr, because he cannot wage his Law, 22 Hen. 6.15. pl. 27. because the bailment was in one County, and the Action is brought in another County.

Release per the Plaintiff a good barr, Lib. Intra. 290. B. Sect. 1. for by the Release the pro∣perty was altered.

The Defendant pleads bailment of deeds by the Plaintiff, upon condition, that if his wife the Plaintess survive the Plaintiff, that the De∣fendant should retain it, and that his wise is alive, a good barr; but then he ought to shew what Lands they concern, 18 Edw. 4.18. that it may be known unto whom the deed belongs.

Infancy is no plea, because he may avoid an obligation in debt, 14 Hen. 6.11. pl. 41. by plead∣ing deins age.

A good bar that the Garnishee brought a De∣tinue against the Defendant, and prays Garnish∣ment against the Plaintiff, which makes default, and he had judgment, 34 Hen. 6.47. pl. 13. 21 Hen. 6.35. pl. 2. per Newton.

Garnishee pleads release between the time of this Action brought, and the delivery, & quaere, 20 Hen. 6.28. pl. 23. 49 Edw. 3.13.

But 39 Edw. 3.13. adjudged, that it is a good barr, and so it seems the Law to be.

Notes

• Accord.
• Attach∣ment.
• Command.
• To deliver over.
• Given.
• Distress.
• Estray.
• Malady.
• Non deti∣net.
• Payment to the va∣lue.
• Pledge.
• Perish.
• Robbery.
• Recovery.
• Travers.
• Vendee.
• Bastardy.
• Feostment
• Warrant,
• Rebail∣ment.
• Release.
• Retainer.
• Infancy.
• Recovery.
• Release.