geinwen v. Wheeler Williams r. Churchwardens of Llan-1 B. & S. 699 3 Burr. 1550 - 268 Wrigley v. Sykes Cro. Eliz. 795 (2 Wms. Saund. 177. 181, note 10, 6th ed. 21 Beav. 337 CORRIGENDA. In pages 129, 130, 131 and 133, M' Manus v. The Lancashire and Yorkshire Railway Company, reported 4 H. & N. 327, is inaccurately described as in error" instead of on appeal." a case The case of "Dutton v. Hally," commencing at p. 748, is incorrectly entitled 'Dutton v. Halley." Page 61, add to marginal points "Truck Act." Id., line 14 of head note, for "from time" read "from time to time." 244, line 6, for "supporit" read "support." 304, line 12, for "rejected" read "received." 347, line 1, 446, line 19, erase "J. D." before" Coleridge." 370, line 19, for " Tead" read "Tedd." 425, erase the comma after "only," in line 15, and also that after "mentioned," line 6 from bottom. 428, line 11, for "T. Campbell Foster" read " C. J. Foster." 443, last line, } line 66 erase 'J. B." before "Karslake." 452, line 10, for " Giles v. Walker" read "Walker v. Giles." 498, add to marginal points, " Hawkers' Act." 566, line 8, for "appontment" read "appointment." 576, S 571, in head note, for "c. 79.," read "c. 128." 640, line 11 of head note, after "consequently" insert "was." of Skircoat." Reg. v. Skircoat" read Reg. v. The Inhabitants 743, line 10 of head note, for "replication" read "replications." Declaration in detinue for title deeds. Plea, that the deeds were entrusted to and deposited with the defendant by one G., deceased; that the plaintiff claimed the right to the possession of them as devisee under the will of G.; that the detention was a loss of them by the defendant before the death of G., and that the defendant never had possession of them since the death of G. On demurrer to this plea : Held by Wightman J., that the plea was bad, as it did not allege that the deeds were destroyed; and, therefore, assuming that they were still existing, and as the property in them was vested by the devise in the plaintiff, he might maintain detinue: Held, by Blackburn J., that the plea was good, as it did not admit that the defendant had possession of the deeds since they were the plaintiff's. DE ETINUE. The declaration alleged that the defendant detained from the plaintiff his title deeds of certain messuages, or tenements, and land, at a place called Windmill Row, in the borough of KidderB. & S. VOL. II. B Thursday, January 30th. Detinue. 1862. GOODMAN V. BOYCOTT. the executor, who could recover only nominal damages, would thereby preclude the heir, who is the party actually damnified, from recovering at all, for I am not aware of any case in which an action has been holden to be maintainable by the heir after a former recovery by the executor." In the present case the person damnified is the devisee; he has the land, and if he wishes to sell it he may be most seriously inconvenienced by the loss of the title deeds: it would appear, therefore, that he is the person who ought to sue for the loss, and not the executor. In Williams on Executors, p. 715, 5th ed., the author, in treating of actions upon covenants real, lays it down, "if such a covenant had been broken in the lifetime of the testator, or intestate, it should seem, according to the old authorities that the rule was that the executor or administrator might sue upon it," and he cites a passage from Com. Dig. in support of such rule; but in p. 716 he adds, "this rule, however, has been directly qualified by the decision of Kingdon v. Nottle, followed by that of King v. Jones, in which cases it was held that where there are covenants real, that is, which run with the land, and descend to the heir, though there may have been a formal breach in the ancestor's lifetime, yet, if the substantial damage has taken place since his death, the real representative and not the personal is the proper plaintiff." Then the loss of the deeds, which, for aught that appears to the contrary, is through the defendant's own default, is no answer to an action of detinue. Williams J., in his judgment in Reeve v. Palmer (a), says: "All the authorities, from the most ancient time, shew that it is no answer to an action of detinue, where (a) 5 C. B. N. S. 84-91. a demand is made for the redelivery of the chattel, to say that the defendant is unable to comply with the deman:l by reason of his own breach of duty." Hutton, contrà.-The plaintiff, in order to maintain detinue, must shew either a privity by bailment between himself and the defendant, or that he had a right to the possession of the deeds when he brought the action. Here there could be no contract of bailment between the plaintiff and the defendant, and, the loss having occurred in the lifetime of the testator, occurred before the plaintiff had any property in the deeds. Reeve v. Palmer (a) only decides that the plea here would be no answer to the action if it had been brought by the plaintiff's testator. It is clear that the testator in his lifetime could have maintained an action against the defendant; and if he recovered judgment, the judgment would have been that he recover the deed or damages for its detention; and if the testator had. sued in his lifetime, and then died, the damages would have gone to the executor. In Br. Ab. tit. Sci. Fa. pl. 190., it is laid down: Si home recover fait concernant enheritance per briefe de detinue, et damages de v. liv. si le fait soit de estre redelyver, et si le fait ne soit destre redelyver tunc, xx. liv. damages et devy, et per opinionem Curie lexecutors navera execution des damages devant que l'heire ad scire facias pur le fait, et distringas ad deliberandum factum, et si le viscount retorne quod charta perdita vel combusta est, donques l'executors avera scire facias del damages et non ante, quod nota, et in plea real le heire avera execution del terre, recover per son auncestor, et les executors averont scire facias des damages et costes, quod nota." Suppose the (a) 5 C. B. N. S. 84-91. 1862. GOODMAN V. BOYCOTT. |