2 App. D.C. 424 | D.C. | 1894
delivered the "opinion of the Court:
This is an action of detinue. The plaintiff complains of the defendant that he refuses to render to her, and unjustly detains, a certain chattel of the value of $1,350. The allegation is that on November 1, 1875, the plaintiff delivered to the defendant a certain diamond locket of the value of $1,350, to be redelivered to the plaintiff whenever the same should be required; and although the defendant was, on the 1st of June, 1888, requested by the plaintiff to redeliver to her said chattel, the defendant has hitherto wholly refused, and still refuses, and unjustly detains the same from the plaintiff; and the plaintiff claims a return of said chattel, or its value, and damages for its detention.
This is ah old common law action, not much resorted to in modern practice. It lies for the wrongful detainer of
It is said that, in the case of a special bailment, it is proper to declare, at least in one count, on the. bailment, and to lay a special request. Kettle v. Bromsall, Willes, 120; Mills v. Graham, 4 Bos. and Pul., 140. But it is now well settled that the allegations of bailment and finding in this action are mere matters of inducement, and are not traversable. Hence, the plaintiff may declare on a bailment to redeliver on request, and yet in his replication rely on a different bailment. Gledstane v. Hewitt, 1 Cr. & J., 565; 1 Chitty Plead. (16th Ed.), 139. The declaration, as we have seen, consists of. a single count, and that is upon a bailment for a redelivery upon request.
The defendant pleaded four pleas: 1st. That, at the time the cause of action accrued, the plaintiff was, and still is a feme covert. 2d. That the locket never was the property of the plaintiff. 3d. That the defendant did not detain the chattel, as alleged; and, 4th; that the locket was, by the plaintiff, who then had possession thereof, pledged with him, the defendant, on or about the 27th of November, 1875, as security for the debt of her then husband, which debt still remains unpaid; that subsequent thereto the husband became bankrupt, and that the equity of redemption was in the assignee of the bankrupt, and that this right was still unredeemed.
There has been a considerable tangle produced in the case by the mode and form of pleading adopted. The case had been certified from the special to the General Term of the Supreme Court, for decision upon plaintiff’s demurrer
The plaintiff then filed a new replication to the defendant’s fourth plea. In that replication it is alleged that as to so much of the defendant’s fourth plea as pleads a pledge of said chattel by the plaintiff to the defendant, said pledge was made after the plaintiff had made the deposit of said chattel with the defendant as alleged in the declaration; and that the plaintiff was induced to make said pledge of said chattel on the 27th day of November, 1875, to the defendant, by the fraud of the defendant.
Upon motion of the defendant, this replication was stricken out, because, as supposed, it was a departure from the declaration; and from the order striking out this replication, the plaintiff appealed to the General Term of the Supreme Court, and from thence the case has been transferred to this court.
The principle would seem to be well established, that the gist of the action is not a breach of the contract of bailment, but the wrongful detainer of the goods or chattels sued for. Therefore, although a declaration in detinue has stated a bailment to the defendant, and his engagement to redeliver on request, and the defendant has pleaded that the bailment was a security for a loan, the plaintiff may, without being guilty of a departure, reply that he tendered the debt, and that the defendant afterwards wrongfully withheld the goods. 1 Chitty P. (16th ed.), 136.
This principle was distinctly held in the case of Gledstane v. Hewitt, 1 Cr. & J., 565. In that case, to a count in detinue, on the bailment of a promissory note to be redelivered
The allegation in the declaration being of a common bailment of the chattel to be redelivered on request, if the article in fact had been pledged as security for debt, it was necessary for the defendant to plead such pledge specially. Under the plea of non detinet, the defendant may prove that the goods are not the property of the plaintiff; but if he has a lawful excuse for the detention, as if the goods were pawned or pledged to him for money which has not been repaid, he must plead it. Co. Litt., 283a, Lord Coke says: “ In*detinue, the defendant pleadeth non detinet; he cannot give in evidence that the goods were pawned to him for money, and that he is not paid, but he must plead it; but he may give in evidence a gift from the plaintiff, for that proveth that he detaineth not the plaintiff’s goods ”; and it was so held in Richards v. Frankum, 6 M. & W., 420.
Now, the defendant having pleaded the special bailment of the locket as a pledge to secure a debt, it was certainly competent to the plaintiff to reply, by way of confession and avoidance, any matter that would discharge the bail
We think it was error in the court below to strike out the replication; and we must reverse the order of the justice at special term striking out such replication, and remand the cause that the replication may be answered, and the cause proceed to trial in due course.
Order reversed and cause remanded.