Detinue – recover “personal property” (movable or intangible assets, but not “real property” such as land or buildings)

Definition of DETINUE:

“A common-law action to recover personal property wrongfully taken or withheld by another.” [1]

Definition of PERSONAL PROPERTY:

“The belongings of an individual, excluding any real estate property or other buildings. Generally includes tangible and intangible assets of an individual.” [2]

    Excerpt from R..V. Heuston’s Salmond on the Law of Torts:

     “A claim in detinue lies at the suit of a person who has an immediate right to the possession of the goods against a person who is in actual possession of them, & who, upon proper demand, fails or refuses to deliver them up without lawful excise. Detinue at the present day has two main uses. In the first place, the plaintiff may desire the specific restitution of his chattels & not damages for their conversion. He will then sue in detinue, not in trover. In the second place, the plaintiff will have to sue in dentinue if the defendant sets up no claim of ownership & has not been guilty of trespass, for the original acquisition in detinue sur bailment was lawful.” [3]

Definition of DETINUE SUR BAILMENT:

[Law French] Hist. An action to recover property that the defendant acquired by bailment but refuses to return.”

Definition of BAILMENT:

“1. A delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose, usually under an express or implied-in-fact contract. Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title. Cf. PAWN.

     Excerpt from Ray Andrews Brown’s The Law of Personal Property:

     “The customary definition of a bailment considers the transaction as arising out of contract. Thus Justice Story defines a bailment as ‘a delivery of a thing in trust for some special object or purpose, & upon a contract express or implied, to conform to the object of purpose of the trust.’ [Joseph Story, Bailments 5 (9th Ed. 1878)] There has, however, been a vigorous dissent to this insistence on the contractual element in bailments. Professor Williston… defines bailments broadly ‘as the rightful possession of goods by one who is not the owner’ [4 Samuel Williston, Law of Contracts 2888 (rv. Ed. 1936)]…. It is obvious that the restricted definition of a bailment as a delivery of goods on a contract cannot stand the test of the actual cases. The broader definition of Professor Williston is preferable.” [4]

     Excerpt from Bailments 8 Am. Jur. 2D):

     “Although a bailment is ordinarily created by the agreement of the parties, resulting in a consensual delivery & acceptance of the property, such a relationship may also result from the actions & conduct of the parties in dealing with the property in question. A bailment relationship can be implied by law whenever the personal property of one person is acquired by another & held under circumstances in which principles of justice require the recipient to keep the property safely & return it to the owner.” [5]

Definition of PAWN:

n. (15c.) 1. An item of personal property deposited as security for a debt; a pledge or guarantee. In modern usage, the term is usually restricted to the pledge of jewels & other personal chattels to pawnbrokers as security for a small loan.  2. The act of depositing personal property in this manner.  3. The condition of being held on deposit as a pledge.  4. PIGNUS (1). pawn, vb.

Definition of CHATTEL:

“Movable or transferable property; personal property; esp., a physical object capable of manual delivery & not the subject matter of real property. See chattel security under SECURITY.

    Excerpt from Thomas Blount’s Nomo-Lexicon: A Law-Dictionary:

     “That Money is not to be accounted Goods or Chattels, because it is not of it self valuable… Chattels are either personal or real. Personal, may be so called in two respects; One, because they belong immediately to the person of a Man, as a Bow, horse, etc. The other, for that, being any way injuriously withheld from us, we have no means to recover them, but Personal Actions. Chattels real, are such as either appertain not immediately to the person, but to some other thing, by way of dependency, as a Box with Charters of Land, Apples upon a Tree, or a Tree it self growing on the Ground… or else such as are issuing out of some immovable thing to a person, as a Lease or Rent for the term of years.” [6]

Definition of CHATTEL SECURITY:

(1840) A security consisting of personal property.”

Definition of SECURITY:

n. (15c.) 1. Collateral given or pledged to guarantee the fulfillment of an obligation; especially, the assurance that a creditor will be repaid (usually with interest) any money or credit extended to a debtor. See SATISFACTION.

Definition of CHATTEL REAL:

(16c.) A real-property interest that is less than a freehold or fee, such as a leasehold estate. The most important chattel real is an estate for years in land, which is considered a chattel because it lacks the indefiniteness of time essential to real property. — Also termed real chattel.

Definition of PIGNUS:

[Latin ‘pledge’] 1. Roman & civil law. (ital.) A bailment in which goods are delivered to secure the payment of a debt or performance of an engagement, accompanied by a power of sale in case of default. This type of bailment is for the benefit of both parties. — Also termed pawn; pledge.  See PIGNORATIO; IMPIGNORATION.

     Excerpt from John George Phillmore’s Private Law Among the Romans from the Pandects:

      “The ‘pignus’, pledge, is the right given to a creditor in the admitted property of another for his security; it is also used to signify the thing so given.[7]

Definition of PIGNORATIO:

n. [Latin] 1. Roman law. The real contract (pignus) under which the debtor handed something over to a creditor as a security; the act of depositing as a pledge. — Also spelled pigneratio. 2. Civil law. The impounding of another’s cattle (or other animals) that have damaged property until the cattle’s owner pays for the damage. Pl. pignorationes.

Definition of IMPIGNORATION:

“n. (16c.) Hist. The act or an instance of pawning or pledging. — impignorate, vb.

References:

[1]: All definitions, unless otherwise indicated, from: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]:  Black’s Law Dictionary 2nd Edition, “PERSONAL PROPERTY”: http://thelawdictionary.org/personal-property/

[3]: R..V. Heuston, Salmond on the Law of Torts 111 (17th Ed. 1977)

[4]: Ray Andrews Brown, The Law of Personal Property § 73 73, at 252, 254 (2d Ed. 1955):  www.amazon.com/law-personal-property-Andrews-Brown/dp/B0006CJCSS

[5]: 8 Am. Jur. 2D Bailment § 1 (1997): www.worldcat.org/title/bailments-reprinted-from-volume-8-am-jur-2d/oclc/11015816

[6]: Thomas Blount’s Nomo-Lexicon: A Law-Dictionary (1670):  http://lawin.org/nomo-lexicon-a-law-dictionary/

[7]: John George Phillmore, Private Law Among the Romans from the Pandects 210 (1863): https://archive.org/details/bub_gb__kOibZ2jn_IC

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