Pasley and another v. Freeman, H. T. 1789. 3 T. R. 51. which came before the court on a motion in arrest of judgment on the third count of the declaration. That count stated, "that the defendant, intending to deceive and defraud the plaintiffs, did wrongfully and deceitfully encourage and persuade them to sell and deliver certain goods to one Falch, upon credit, and for that purpose did falsely, deceitfully, and fraudulently assert, that Falch was a person safely to be trusted, &c. whereas, in truth, Falch was not a person safely to be trusted, and the defendant well knew the same, &c." The question, was, whether, admitting all the facts as stated to be true, the action could be maintained. Lord Kenyon, C. J., Ashhurst and Buller, Js. were of opinion, that it might be maintained. Grose, J. was of opinion, that it was not maintainable.

It may be remarked, that in cases of this kind it is not necessary, that the defendant should have derived any advantage from the deceit; or that he should have colluded with the person who did derive the advantage; but there must be fraud (14) in the defendant, in order to support the action; for in a late case, where there was not any fraud or deceit in the party making the representation, although he had incautiously asserted that to be within his own knowledge, which in strictness he could not be said to have known, but had reasonable and probable cause only to believe; it was holden by Grose, Lawrence, and Le Blanc, Js. that the action was not maintainable. But Kenyon, C. J. was of a different opinion,

The defendant having had a credit lodged with him by a foreign house, in favour of one T. to a certain amount, upon an express stipulation, that there should be previously lodged in the defendant's hands goods to treble the amount, and having been applied to by the plaintiffs for information respect

y Pasley v. Freeman, 3 T. R. 51 aud per Kenyon, C.J. in Eyre v. Dunsford, 1 East, 328, 9.

z Tapp v. Lee, 3 Bos. & Pul. 367.

a Haycraft v. Creasy, B. R. M. T. 1801. 2 East, 92.

b Eyre and another v. Dunsford, B. R. H. 41 G. 3. 1 East, 318.

differ from Pasley v. Freeman, and subsequent cases decided on the authority of that case. See Lord Eldon's remarks on this case in 6 Vesey, 182, and in 3 Ves. and Beames, 110.

66

(14) By fraud, I understand an intention to deceive; whether it be from any expectation of advantage to the party himself, or from ill will towards the other, is immaterial." Per Le Blanc, J, "Fraud may in Haycraft v. Creasy, 2 East's R. 108. consist as well in the suppression of what is true, as in the representation of what is false." Per Chambre, J. 3 Bos. & Pul. 371,

ing the responsibility of T., answered, that he (defendant) did not know any thing of T., except what he had learned from his correspondent, but that he had a credit lodged with him to a certain amount by a respectable house, which he held at the disposal of T. (omitting to mention the stipulation on which the foreign house had given T. credit) and that, upon a view of all the circumstances which had come to the defendant's knowledge, the plaintiff's might execute T.'s order with safety (viz. an order for the sale and delivery of goods upon credit). It was holden, that on the part of the defendant, there was a material suppression of the truth, and evidence sufficient for the jury to find fraud, which was the gist of this action; although at the time when the defendant made the representation, he added, that he gave the advice without prejudice to himself.

In ordinary cases, the person, who gives a representation of the credit of a third person is not liable beyond the value of the goods furnished on the facts of the representation; but circumstances may exist which will render him liable to losses arising from subsequent dealings".

In this action, the party, whose credit is misrepresented, is a competent witness for the plaintiff.

De Graves v. Smith, 2 Camp. N. P. d Hutchinson v. Bell, 1 Taunt. 558.

C. 533.

e Richardson v. Smith, 1 Camp. N.

P. C.277.

CHAP. XVI.

DETINUE (1).

I. Of the Action of Detinue, and in what Cases it may be maintained.

II. Of the Pleadings and Evidence.

III. Of the Judgment.

I. Of the Action of Detinue, and in what Cases it may be maintained.

THE action of detinue may be maintained by any person, who has either an absolute or a special property in goods, against another, who is in the actual possession, either by delivery or findinga, &c. (2) of such goods, and refuses to redeliver them.

In this action the plaintiff seeks to recover the goods in specie, or in failure thereof the value (for it is in the election of the defendant, whether he will deliver the specific goods, or pay the value thereof,) and also damages for the detention.

a 1 Inst. 286. b. ton's Ent. pl. 202. Dalton's Sbff. b See distringas ad deliberand. As- 222. Rastal's Ent. 212.

(1) This action has fallen into disuse on account of the defendant being permitted to wage his law.

(2) In Kettle v. Bromsall, Willes, 118, it was holden, that detinue would lie for things lost and found*, as well as for things delivered. If A. bargains and sells goods to B. upon condition, that if A. pays B. a certain sum of money at a day fixed, the sale shall be void; if A. pays the money, he may have detinue for the goods, although they came not to the hands of B. by bailment, but by bargain and sale. Bateman v. Elman, Cro. Eliz. 866.

* F. N. B. 324, Ed. 4to. S. P.

As this action proceeds on the ground of property in the plaintiff, at the time of action brought, it cannot be maintained, if the defendant took the goods tortiously; for by the trespass, the property of the plaintiff is divested (3).

Hence, also, if a person detain the goods of a feme covert, which came to his hands before the marriage, the husband alone must bring the action: because the property is in him at the time of action brought.

Property in the plaintiff, without ever having had possession, is sufficient.

Hence an heir may maintain detinue for an heir loom *.

So if it be enacted by a statute, that goods imported in any other manner than as therein directed, shall be forfeited, one moiety to the king, and the other moiety to him who will inform, seize, or sue for them: a subject may have detinue for the moiety of goods imported contrary to the provisions of the statute; for by the illegal importation the property is divested out of the owners, and by bringing the action it is vested in the plaintiff, by relation, from the time of the offence committed (4).

So if I. deliver goods to A., to deliver to B., B. may have detinue; for the property is vested in him by the delivery to his use.

The goods demanded must be such as can be distinguished from other property, by certain discriminating marks; as money in a bag; a horse; a cow1; a piece of gold value

c 6 H. 7. 9. a. Bro. Abr. Detinue, pl. 53. per Brian, C. J. may have replevin, pl. 36.

d Bull. N. P. 50.

e Bro. Abr. Detinue, pl. 30.

t. v. Withered, 5 Mod. 193. 12 Mod. 92. Salk. 223. S. C.

g 1 Rol. Abr. 666. (C) pl. 1.

h 1 lust. 286 b. 1 Rol. Abr. 606. (A) Pl. 1.

f See stat. 12 Car. 2. c. 18. Roberts q. i F. N. B. 322. (A) ed. 4to.

(3) This position is cited in Com. Dig. and other books; but the opinion of Vavasor, J. to the contrary, in the same case, seems to be better founded. See the reasoning of Anderson and Warburton, Js. in Bishop v. Montague, Cro. Eliz. 824. to the same effect, but applied to the action of trover.

(4) This case was recognized in Wilkins v. Despard, 5 T. R. 112. where it was holden, that if a ship be seized as forfeited under the navigation act (12 Car. 2. c. 18.) by a governor of a foreign country under the dominion of Great Britain, the owner cannot maintain trespass against the governor, although there has not been any sentence of condemnation; because the forfeiture is complete by the seizure, and the property is thereby divested out of the owner.

twenty-one shillings; deeds concerning the inheritance of the plaintiff's land, if he can describe what they are, and what land they concern1: or if such deeds are in a chest ": and the like. But, for money (not in a bag or chest) or corn, and other things which cannot be distinguished from property of the same kind or description, detinue will not lie.

The gist of the action being the detainer, it is necessary, that the defendant should be in possession of the goods.Hence, if the bailee of goods die, detinue will not lie against his personal representative, unless he takes possession of the goods (5). But if, after the death of the bailee, a stranger takes the goods, detinue lies against such stranger.

If goods be delivered to husband and wife, detinue ought to be brought against the husband only. But if they are delivered to the wife before marriage, the action must be brought against husband and wife'.

From the preceding cases it may be collected, that the grounds of the action of detinue are,

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

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

II. Of the Pleadings and Evidence.

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

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