Исковое право на возврат незаконно изъятого имущества

Legal action to recover for the wrongful taking of personal property

In tort law, detinue (/'//d//ɛ//t//ɪ/,/nj//uː/) is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor. For an action in detinue to succeed, a claimant must first prove that he had better right to possession of the chattel than the defendant, and second, that the defendant refused to return the chattel once demanded by the claimant. Detinue allows for a remedy of damages for the value of the chattel, but unlike most other interference torts, detinue also allows for the recovery of the specific chattel being withheld.

Detinue was an old form of action which slowly branched off from the action of debt. Ames regarded the action of detinue as essentially an action based upon contract, having its foundation in bailment. Ames' point is that the action was a means of enforcing an agreement which was recognized by the law. This argument represents the realization of a theory of contract in detinue. Detinue also replaced the more ancient action of res adiratae. According to Bracton the plaintiff could drop the words felony and merely claim that his chattels were in the possession of the defendant. Holdsworth is of the opinion that the gist of this action was unlawful detention. Holdsworth bases this on a case from Bracton's notebook in which the plaintiff alleges that "William Nutach in the peace of God and of our Lord the King and of his bailiffs unjustly detains (injuste detinuit) from her three pigs which were lost to her." The action depended upon loss of the chattel, which had come to the hands of a defendant who had refused on demand to give it up. Holdsworth deduces this case was the forerunner of the action in detinue, which also lay to recover a lost chattel. Ames is of the opinion that this case represents not so much an action, but a formal demand made in court for the return of the chattel, which, if denied, could be followed by an appeal. It is certain that an appeal could be substituted after an allegation of res adiratae had been made. It is disputed whether proceedings in res adiratae could not be brought in royal courts. Holdsworth cites a case from 1292 which seems to fulfill all the requirements of res adiratae. "Note that where a thing belonging to a man is lost, he may count that he (the finder) tortiously detains it. Etc. and tortiously for this that whereas he lost the said thing on such a day, etc. he (the loser) on such a day etc., found it in the house of such a one and prayed him to restore the thing but he would not restore it, etc., to his damage, etc. ; and if he etc. In this case the demandant must prove by his law (his own hand the twelfth; i. e. wager of law) that he lost the thing." Ames said of detinue "In the first place, the count must allege a bailment, and a traverse of this allegation was an answer to the action." However, there are many instances where allegation of bailment was not necessary for an action in detinue. Holdsworth cites a 1313 case in which the counsel. Toudeby for the defendant pleaded no allegation of bailment, but Scrope, the counsel for the demandant (plaintiff), replied that, if the defendant carried off the chattels and a writ was brought to recover them, it was no answer to say that the chattels had not been bailed to the plaintiff. Still the case turned on the question of bailment. In 1343, the defendant was driven to a traverse in these terms: "We tell you that the horse did not come into our keeping, nor do we detain the horse, as he counts." In 1410, both counsel agreed that an action of detinue lay whether the chattel was bailed or whether the defendant found it in the road. The plea simply amounted to an assumption that the chattels had come into the hands of the defendant (devenerunt ad manus), and were wrongfully withheld from the plaintiff.

During the fifteenth century, this plea gave rise to a special form of the action of detinue known as "detinue sur trover" which should be distinguished from the action of "trespass on the case sur trover". The latter would be shortened into simple trover. Littleton remarked that the count or plea of "per interventionem (sur trover) was a newfound halliday." The action probably represents the development of a simpler form of pleading in which it was unnecessary to allege by what means the chattel had come into the defendant's hands. the same opinion was reiterated in 1510 by Serjeant Moore, although an action would lie for trespass on the case. In the cases of a chattel damaged or destroyed, the plaintiff must choose some remedy other than detinue. This was also true if the bailee dealt with the property in an improper manner as noted by Littleton in 1462: "I bail to you my cloak and you burn it, I will have a writ of trespass on the case against you (and not detinue)." It was doubtful whether detinue lay where, after bailment, a third party had destroyed the chattel bailed. The action lay against a bailee who had himself been responsible for the loss, as where a charter had been found by the jury to have been burned. By the time of Bracton, the old preference for an action in trespass exclusively was seen to have softened somewhat, with certain actions allowed against a third party in detinue. This began to make wager of law ineffective as a defense. The judges of the time were growing wary of wager of law as a legitimate defense, anyway. This attitude allowing detinue was not universally held, as can be seen from the cases noted in this section.

In the opinion of Bracton, if goods were unlawfully taken from the possession of the bailee, it was he who had the action against the wrongdoer, not the original bailor. The action was appeal of larceny or trespass. Even in the time of Bracton, there was pressure to change this arrangement and allow the bailor to bring an action directly against the third party. Under the old rules, the bailee had an absolute responsibility to the bailor for safe keeping of the goods. A case from 1200 directed the verdict for lost goods against the bailee who claimed they had been lost and stolen during a fire at his property. Glanvill also held this opinion. Glanvill held that the bailee was absolutely bound to restore the lost chattel or its value. Bracton appeared to mitigate the old rule. If the bailee had shown due diligence, there was room for mitigation of damages. However, it was never clear how Bracton would decide to proportion damages. Bracton's description has been called Romanesque, and premature. Even by Bracton's time, lawyers were becoming accustomed to the notion that bailees did not have an absolute liability for chattels bailed to their tending, assuming they used reasonable care or diligence in handling them. In Bracton's text, there was the beginning of the notion that bailee had an action for loss, assuming he had some interest in the chattel beyond mere possession. That must be some kind of responsibility for its care and safety. It had not developed very far. Bracton more than once seems to require that the appellor shall complain of a theft of his own goods or of goods for which he has been made responsible, namely, intravit in solutionem erga dominum suum. The time between conveyance and possession was ill defined. The time of bailee possession was called the custodia or "custody". The bailee had three courses of action: (1) the appeal of larceny; (2) the action of trespass; (3) the action of detinue. Bracton wrote of detinue:

Glanvill described one action which had features of both debt and detinue. They were the same. In his time, the form of the writ was a demand for a sum of money which could be issued for various reasons. "Debt" or detinue could be demanded for return of the loan of money, the price of sale, the loan of a chattel, letting to hire, or a deposit. The writ was available for a creditor against a surety on the default of the principal debtor. Glanvill speaks of debt and its writ as being a retrieval of "debt that is due", or detinue. Later, and by the time of Bracton, detinue had been more or less separated from primary actions in debt, Detinue had come to be restricted to actions against bailees. After Bracton, the special situation of de bonis asportatis, the taking of chattels by a bailee or theft of these from a bailee gave rise to the special situation of trover. Trover became fully formed in the reign of Elizabeth I. By the end of Bracton's life and into the reign of Edward I, debt was confined to contract law, while detinue was concerned with the developing issues of personal property.

Occasionally, the issue of a transporting agent, a bailee who was charged with moving chattels would open the wrapped packages and misappropriate the contents. This was called breaking the bulk. In 1315, an action in detinue was allowed for "breaking the bulk". Later, in 1473, breaking the bulk was determined to be a felony, and not an action in pure detinue.

In the United States, detinue is a possessory action having for its object the recovery of specific personal property and damages for its detention. At common law an action of detinue would lie for the recovery of specific personal property unlawfully detained, or its value, and for damages for its detention. Detinue differs from replevin in that possession of the chattel in controversy is not changed until after the judgment in detinue, whereas in replevin possession is changed at the beginning of the proceeding. The gist of an action in detinue is that the defendant is wrongfully in possession of personal property which belongs to the plaintiff, whereas replevin lies only where there has been a wrongful taking or seizure of the property. Detinue is distinguished from common law trover which is for the recovery of damages for the wrongful conversion of personal property. In modern practice, detinue has been superseded almost entirely by statutory actions for the recovery of personal property.

In England and Wales, detinue was abolished from 1 January 1978 by the Torts (Interference with Goods) Act 1977. However, the tort of conversion was extended at the same time to cover circumstances that had previously been covered only by detinue.