Broadbent against Ledward
| Jurisdiction | England & Wales |
| Judgment Date | 28 November 1839 |
| Date | 28 November 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 395
IN THE COURT OF QUEEN'S BENCH.
S. C. 3 P. & D. 45.
broadbent against ledward. Thursday, November 28th, 1839. In detinue, upon issue joined on a plea denying property in the plaintiff, it is no defence that there are other persons, co-tenants with the plaintiff, who are not joined in the action. [S. C. 3 P. & D. 45.] Detinue for pictures. Pleas 1. Non detinet. 2. That the pictures were not the pictures of the plaintiff. At the trial at the Liverpool Spring Aaaizes, 1838, before Coleridge J., it appeared that the plaintiff was a trustee and member of a club, and as such member was proprietor of the pictures jointly with other members, who were not made co-plaintiffs in the action. The jury found a verdict for the plaintiff on both issues, subject to a motion to enter a verdict for the defendant on the second plea, if the Court should be of opinion that the nonjoinder was a defence under it. In the following term Wightman obtained a rule nisi accordingly. Cresswell, Alexander, and Tomlinson now shewed cause. Detinue is essentially an action founded on tort; [210] and one of the several parties injured may therefore sue alone, subject to a plea in abatement. That this is the law in trover is established by Neltkorpe v. Dorrington (2 Lev. 113), Addison v. Overend (6 T. R. 766), and Sedgworth v. Overend (7 T. R. 279). [Coleridge J. Detinue and debt may be joined in one action (d); and the defendant might formerly have waged his law.] Those tests are not decisive, for detinue and trover may also be joined (e), and trial by law wager depended not on the form of action, for it would not lie in many cases of debt and other actions ex contractu, but on the nature of the transaction upon which the action was founded (g). The allegation of a bailment in the declaration is no proof that the action is upon a contract, for it is immaterial and mere inducement ; Bateman v. Elman (Cro. El. 866), Gledstane v. Hewitt (1 C. & J. 565). The new rules of pleading shew that the detention is the gist of the action; for they provide that the plea of non detinet shall have no other effect than to put it in issue; H. 4 W. 4, Pleadings in Particular Actions, III. Mills v. Graham (1 New Rep. 140), is to the same effect; and there the action was held to lie against an infant. In Com. Dig. Pleader (E, 10), the nonjoinder of a co-tenant in detinue of charters is treated as matter for a plea in abatement only. If...
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...565. Jones v. DowleENR 9 M. & W. 19. Colegrave v. Dias Santos 2 B. & Cr. 76. Gledstane v. HewittENR 1 Cr. & J. 570. Broadbent v. Ledward 11 A. & E. 209. Clossman v. WhiteENR 7 C. B. 43. Severin v. KeppellENR 4 Esp. 157. Gledstane v. Hewitt 1 Cr. & Jer. 565. Detinue Bailment Demand. Appeal. ......
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...bring the action, the objection of non-joinder of the others can only be taken by plea in abatement: .Broadbent v. Ledward, [391] 11 Ad. & E. 209, 3 P. & D. 45." In Hand y. Daniels, 1 L.'-M.. & P. 420, Maule, J., says : "If detinue be an action of tort, how do you account for that which is ......
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...fact of the detention; any defence on the ground of community of interest, or lien, must be specially pleaded : Broadbent v. Ledward, 11 Ad. & E. 209, 3 P. & D. 45: Mason v. FarneU, 12 M. & W. 674. Besides, here, a wrongful detention was proved,-a detention under an unfounded claim of lien.......
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...trover. It does not bind to any proof. Detinue is an action founded on tort; had that not been so, the plaintiff in Broadbent v. Ledward (11 A. & E. 209), must have been defeated on the objection of non-joinder. Gledstane v. Hewitt (1 Cro. & J. 565. 1 Tyr. 445), where several authorities as......