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 ...

Against whom Detinue lies, 1. Of Chattels; 2. Of Deeds.

Detinue lies against an Abbot and his Com∣moigue for a thing delivered to his Commoigue fore-deliver,* 1.1 3 Edw. 3.83. pl. 32. a thing delivered to them.

An Administrator sold a thing,* 1.2 the Executor proves the Will, he shall have a Detinue against the Vendee of the Administrator, Com. 275. Foxes case; for now the Administrators title and pro∣perty is destroyed, and the sale accounted void irreplevisable, that is, that the Cattel or Goods ought not by Law to be replevied again.

Avowant returns irreplevisable,* 1.3 the other ten∣ders amends, and upon refusal shall have a De∣tinue, Coke 8. part. 147. A. for the property is in him, 10 Eliz. Dyer 280. pl. 14. notwithstanding the distress; for the distress did but put them in∣to the custody of the Law, and altered not the property.

* 1.4Goods delivered to A to keep, and they are stole, yet Detinue lies against him, Coke 4. part. 83. B. Southcots case; for he ought to have kept them at his peril, and he shall have his remedy against the Thief.

But if he take them to keep, as he would keep

his own, and they are stole, Detinue lies not, Coke 4. part. 83. for here he warrants not the safe keeping of them, for he cannot warrant his own from stealing.

Goods delivered to B to deliver to C, yet C shall have a Detinue against B, 18 Hen. 6.9. A. Nat. br. 138. A. for the delivery of them to be de∣livered to B, vests the property of them in B, and not in C.

* 1.5It lies not against husband and wife, supposing they detain, 38 Edw. 3.1. pl. 1. 13 Rich. 2. Breve 644. for the wife cannot detain, but it is the de∣tainer of the Husband.

But of bailment to the Wise, dum sola fuit, and that the Husband did detain, 43 Edw. 3.18. pl. 1. Lib. Intra. 219. D. sect. 4. it lies.

A Carrier loseth B's goods,* 1.6 or they are stole from him, yet Detinue lies against him, Coke 4. part. 84. A. 2 Hen. 7.11. B. Townsend; for the property was in the owner, and the Law chargeth the Carrier with them.

It lies against an Executor,* 1.7 but he shall not be charged but for his Detainer, 39 Edw. 3.5. pl. 21. in his own time, and not for the Testators De∣tainer.

Crooke 118. pl. 62. A bails goods to B, which dies; in Detinue against the Executors the que∣stion was, whether they shall be named Execu∣tors or not, and it seemed they needed not, for the Detainer is the point of Action. Quaeret••∣men, for they detain by virtue of their Execu∣torship.

For Hill. 12 Jac. Ban. Regis, Isack & Clark 13 Hen. 4.12. pl. 2. 11 Hen. 4.45. pl. 20. 2 He••

5.6. pl. 29. 21 Hen. 6. pl. 1. one shall not answer without the other, therefore they are charged for the Detainer only. Quaere tamen, for although they make but one person, yet this proves not but that they detain as Executors, and are so to be charged, as it seems.

It lies against an Executor upon a rationabile parte bonorum, 17 Edw. 3.9. pl. 29. brought by the Feme of the Testator.

An Executor shall have a Detinue for goods in the possession of the Executor of his Joynt-executor, if the said Joynt-executor will pay a debt to the value. 3. Eliz. Dyer 187. pl. 6. for the Executorship survives.

It lies against a Stranger when they come to the possession of two,* 1.8 4 Edw. 4.9. pl. 11. Nat. br. 138. E. Q.

Lessor shall have a Detinue for implements leased with the house, at the end of the term,* 1.9 a∣gainst the Lessee, although they are wasted, 20 Hen. 6.16. pl. 2. for the property of them was not divested out of the Lessor by the lease.

* 1.10Against him that finds goods, if they be wasted per wilful negligence; otherways if it be by ca∣sual means, Doct. & Stud. 129. B. or a Trover lies, for that he could not prevent.

If a Horse be stole and sold in a market,* 1.11 but not according to the Statute, the Owner shall have a Detinue, per 3 Mariae cap. 7. for the sale is void, and so the property is not altered.

Administrator sold a thing, the Executor proves the Will, he shall have a Detinue against the Ven∣dee of the Administrator, Com. 275. Foxes case. See the reason before, that the sale is made void.

It lies against a Sheriff,* 1.12 where he returns upon a returna habenda quod averia elongata sunt, per Westm. 2. cap. 2. 9 Hen. 6.42. See before the reason.

A Wife Tenant in tail dies before issues,* 1.13 quaere, if a Detinue lies against the Husband without re∣quest, 33 Hen. 6.30. B.

A Feme sues goods dum sola fuit, and takes a Husband, Detinue lies against the husband and wife, Lib. Intr. 209. D. Sect. 4. 43 Edw. 3.18. pl. 1. for now the goods are come into possession of the husband by the marriage, and so they are both to be sued; for the cause of Action begun whilst the Feme was sole, and it is continued in the husband by the intermarriage and detainer since.

If A. enfeoff B. with warranty,* 1.14 B. shall have a Detinue against A. for deeds that comprehend warranty, or are material for the Title, Coke 1. part. 2. because the warranty is for his benefit.

If A. enfeoff B. without warranty, B. shall have it against A. for all the deeds concerning the land, the Feoffor needs not any deeds to make out the warranty.

And if the thing lies in grant, then it lies a∣gainst the Feoffor, for all Coke 1. part. 1. Buck∣hursts case; for there is no warranty for him to make out, as it seems.

And so in any case for a deed that makes his estate good, Nat. br. 138. K. for it is reason to let him have weapons requisite for his necessary de∣fence.

* 1.15A Lease made to A. for the life of B. remain∣der over to C. B. dies, C. shall have a Detinue a∣gainst A. without request, because C. had interest

in it before, 33 Hen. 6.30. B. and he knows that by the death of B. his estate is determined; sed quaere, if A. do not know B. is dead.

Notes

• * 1.1

  Abbot.
• * 1.2

  Admini∣strator.
• * 1.3

  Avowant.
• * 1.4

  Baily of goods.
• * 1.5

  Husband and wife.
• * 1.6

  Carrier.
• * 1.7

  Executor.
• * 1.8

  Estranger.
• * 1.9

  Lessee.
• * 1.10

  Trover of goods.
• * 1.11

  Vendee.
• * 1.12

  Sheriff.
• * 1.13

  Husband.
• * 1.14

  Feoffor.
• * 1.15

  Against a Lessee for life.