1962. GOODMAN BOYCOTT. defendant had, in the testator's lifetime, wrongfully cut down a tree, the heir could not have brought an action for the wrong; and as, before the passing of the 3 & 4 W. 4. c. 42. 8. 2., the executor could have brought no action for damage done to real estate, it follows that no one could have brought an action. It may be that, notwithstanding that statute, there is a class of cases where a wrong is committed in the testator's lifetime, for which no one can sue. The plea shews that the defendant never had possession of the deeds after the plaintiff became entitled to them; the plaintiff, therefore, cannot maintain this action; if any action lies, the executor is the proper person to sue; Raymond v. Fitch (a), Ricketts v. Weaver (b), 1 Williams on Executors, 719-20-21.5th ed. H. Cole was heard in reply. Cur, adv. vult. The following judgments were now read by Wight man J. WIGHTMAN J. This was a demurrer to a plea in detinue, and was argued before my brother Blackburn and myself on the 27th of November last; and as we differ in opinion, it is not without great doubt, and after much consideration, that I have arrived at the conclusion that the plaintiff is entitled to judgment. The declaration alleged that the defendant detained from the plaintiff his title deeds of certain messuages and land, whereby the plaintiff was prevented selling or mortgaging the same, as he would have otherwise done. The defendant pleaded that the deeds were entrusted to and deposited with him by one Goodman, deceased, (a) 2 C. M. § R. 588; 5 Tyr. 985. (b) 12 M. & W. 718. and that the plaintiff claimed them as devisee under his will, and had no other interest in them, and that the detention of them was a loss of them by the defendant before the death of the said Goodman deceased, and that the defendant never had the possession of them since the death of Goodman. It is not alleged in the plea that the deeds have been destroyed, and it may be therefore assumed that they are still existing; and as the property in them is by the devise vested in the plaintiff, he may maintain detinue, though he never had the actual possession, against any one who detains them; as in the case of an heir at law suing in detinue for an heirloom: Bro. Ab. Detinue, pl. 30. 45. The loss of them would be no answer to an action by the original bailor unless it appeared by the plea that it was without any default of the defendant. Is then the loss of them as pleaded an answer to an action of detinue by the present plaintiff, who became the owner and entitled to the possession after the alleged loss by the defendant? The deeds must be taken to be still existing, and ought to be in the possession of the defendant ready to be delivered to the plaintiff; and he can hardly be allowed to set up his own default as an excuse for not having the possession of the plaintiff's property. Consistently with the defendant's plea, the deeds may have been found immediately after the death of the bailor; and though they may not have actually come to the possession of the defendant since, he might have known where they were, and might have the possession of them if he pleased. The case would have been different had the plea stated that the deeds had been burnt or destroyed before the death of the bailor; for if that had been the case, the plaintiff would never have 1862. GOODMAN V. BOYCOTT. 1862. GOODMAN V. BOYCOTT. had any property in the deeds at all, and, consequently, could not be entitled to maintain an action to recover the possession, or damages for withholding it. As the case stands, if the plaintiff has judgment to recover the deeds in specie or their value, the defendant may, before execution, be able, as they are still existing, to comply with the first requirement of the judgment, and restore the deeds themselves. The action, it is to be observed, is not to recover damages for losing the deeds, but for the detention of them. They must be taken upon these pleadings to be existing; the plaintiff is the owner, and they are detained from him, without sufficient legal excuse, by the defendant, who ought to be in possession of them. If this action is not maintainable, I do not see how any action can be maintained by anybody, though the plaintiff has sustained great damage. The executor of the bailor cannot maintain detinue, for he has no property in the deeds, nor right to the possession, nor was there any request or refusal to deliver them in the bailor's lifetime; nor can he maintain an action for losing them, as the personal estate sustained no damage. I therefore think that the plea is bad, and does not answer the declaration, and that our judgment should be for the plaintiff. BLACKBURN J. In this case there was a count in detinue for the plaintiff's title deeds in the usual form. To this the defendant pleads, that the title deeds were deposited with him by one Goodman, since deceased; and that the plaintiff's right to the deeds is as devisee of Goodman, and not otherwise; that the defendant lost the deeds in the lifetime of Goodman, and has never had possession of them since his death. To this there is a demurrer. The authorities, from those to be found in Brooke's Abridgment tit. Detinue, down to Reeve v. Palmer (a), agree that where the defendant in detinue had at one time possession of the plaintiff's goods, under such circumstances that he was bound to return them on demand, he cannot defend an action of detinue by pleading that in consequence of something amounting to a default on his part, as between him and the plaintiff, he, the defendant, has no longer possession of the goods, and, consequently, cannot comply with the demand; and, therefore, as the plea in the present case does not allege that the goods were lost without any default on the defendant's part, it would be bad if it appeared that the defendant ever had the plaintiff's goods. But the plea does not admit this: it shews that the defendant had those deeds before they became the plaintiff's, and that he lost them at a time when the plaintiff had nothing in them; and, as it seems to me, he had no need to excuse that loss as against the plaintiff, inasmuch as the plaintiff was not then injured by the loss of what were not then his goods. It is true that the plaintiff has since then acquired by the devise the property in those deeds, just as he might have acquired property in any other goods by purchase; and I agree that he has a right to maintain an action for any wrong to him, as owner of those deeds, committed subsequently to the time when they became his; but, as a general rule, causes of action already accrued do not run with the property in goods or deeds. This plaintiff could maintain no action of trover or trespass for any act done to the deeds before they were his, nor could he maintain (a) 5 Com, B. N. S. 84. 1862. GOODMAN V. BOYCOTT. 1862. GOODMAN V. BOYCOTT. minster, in the county of Worcester, that is to say, a counterpart of a lease, dated the 28th November, 1796, made between Edward Davis, and Sarah, his wife, of the one part, and James Jauncy of the other part; a certificate of redemption of land tax; and a chirograph of a fine, of and relating to the said messuages or tenements, and land; and also a document in writing, being an undertaking given and made by one Mr. Bradland, relating to the said messuages or tenements and land; whereby the plaintiff was prevented from selling or mortgaging the same, as he otherwise would have done and he claimed a return of the deeds, or their value, and 50%. for their detention. one Plea: That the deeds in the declaration mentioned, were entrusted to and deposited with the defendant by Goodman, deceased, and that the plaintiff claimed the right to the possession of the deeds as devisee under the last will and testament of the said Goodman, and never had any other interest in the deeds. It then averred that the detention in the declaration mentioned was a loss by the defendant of the deeds, so deposited with him as aforesaid, before the death of the said Goodman, and that the defendant had never had possession of the deeds since the death of the said Goodman. Demurrer and joinder. The demurrer was argued at the sittings in banc, after Michaelmas Term, 1861, on the 27th November, before Wightman and Blackburn JJ. (a). Montague Smith (H. Cole was with him), in support of the demurrer. The plea affords no answer to the (a) The argument is reported by H. Holroyd, Esq. |