Clossman v White
| Jurisdiction | England & Wales |
| Judgment Date | 25 January 1849 |
| Date | 25 January 1849 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 18
IN THE COURT OF COMMON PLEAS
clossman v. white. Jan. 25, 1849. The bailment in detinue is not traversable. To a count in detinue on a bailment, in the usual form, the defendant, who was under terms to plead issuably, applied, by summons, to V. Williams, J., at chambers, for leave to plead the following pleas,- [44] First, non detinet. Secondly, a denial of the delivery of the goods to the defendant. Thirdly, a denial of the terms upon which the goods were alleged to have been delivered. Fourthly, that the goods were not the goods of the plaintiff at the time of delivery, but that the defendant had no notice thereof; that afterwards the true owner gave notice of his title, and forbade the defendant to deliver the goods to the plaintiff, and insisted on his retaining them, and threatened an action; and that the defendant bona fide withheld them in consequence. Fifthly, that, after the goods had been delivered to the defendant, and whilst they were still in his possession, the plaintiff ceased to be owner of the goods, by transferring them to one P. Clossman, who gave notice to the defendant, and prohibited him from delivering to the plaintiff; wherefore, &c. Sixthly, exoneration and discharge by mutual consent before the alleged detention. Seventhly, leave and licence. The learned judge having declined to allow the second and third pleas, on the ground that the bailment was not traversable. Greenwood, on a former day, obtained a rule nisi to add the second plea. He submitted, that, where the bailment is the very ground of the action, the defendant is 1C. B.45. CLOSSMAN V. WHITE 19 wholly undefended unless he is at liberty to traverse it; that it is only where the bailment is founded on property in the plaintiff, that it is not capable of being traversed, the bailment in that case being a pure fiction; and that the property, though put in issue by non detinet before the new rules of pleading, is not so now. He referred to Kastall's Entries, 212, Mason v. Far-[45]-neU (12 M. & W. 683), Clements v. Fight (16 M. & W. 49), and JFhitehead v. Harrison (6 Q. B. 423). Byles, Serjt., now shewed cause. The proposed plea is clearly a bad one. This matter underwent very full discussion in Gledstane v. H&wit (1 C. & J. 565), where, to a count in detinue, on the bailment of a promissory note, to be re-delivered on request, the defendant pleaded that the plaintiff had deposited the note with him to be kept as a pledge and security for the re-payment of a loan of 501.; and the plaintiff replied a tender of the 501.; and this was held to be no departure. On the part of the defendant, it was submitted that the replication was a departure; that it did not support the declaration, but contained matter which would defeat the right of action as stated in the declaration; that the contract stated in the plea, and admitted by the replication, was totally different from that stated in the declaration,-the one alleging a general bailment, the other a bailment for a special purpose, which might and ought to have been traversed in the replication : and Kettle v. Bromsall (Willes, 120), and Mills v. Graham (1 N. K. 140), were cited. But Bayley, B., said: "The nature of the action of detinue is, that the detainer is the gist of the action. The plaintiff must make out that he was entitled to the delivery of the article, and that the defendant wrongfully detained it; and, if he can do that, he has done all that is necessary to maintain his action. He is not bound to shew the circumstances under which the article came into the defendant's hands. It may have come into the defendant's hands by bailment, by pledge, which is a species of bailment, by finding, or by other means. The action of detinue is an action of wrong (h), and it is only necessary [46] to prove so much as is material: and the question in this case is, whether the allegation that the note was to be re-delivered on request, is essential, to entitle the plaintiff to recover in this case. The defendant pleads what in substance amounts to this,-that the note was delivered on pledge, viz. that he was to hold it until the plaintiff paid him 501., which is a different bailment from that stated in the declaration. If the declaration is to be considered as binding the plaintiff to a contract to re-deliver on request, the defendant's plea should have concluded with a traverse1? it should have stated that the note was delivered by way of pledge, and have traversed that it was delivered, to be re-delivered on request. That would have been essential if the bailment in the declaration were material; but the authorities shew that such a traverse is not the common course of pleading; and the defendant must shew such a delivery as will give him a continuing right to withhold the article. If the plaintiff means to insist that the article was not delivered on the terms mentioned in the plea, he is at liberty, in his replication, so to do; but it is not for the defendant to tie him down to the bailment stated in the declaration, by a traverse. If the plaintiff does not mean to deny the terms which are stated in the plea, he may shew, that, even upon those terms, the defendant has no right to withhold. Therefore, to a plea of this description, the plaintiff has the option to deny the species of delivery on which the defendant insists, or to shew such circumstances as, admitting the delivery, establish that the defendant is guilty of a wrongful detention. As it seems to me, that is clearly to be deduced from the case of Bateman v. Ellman (Cro. Eliz. 866), and the other authorities on the same point. In Brooke's Abridgment (title Detinue de Biens, pi. 50), it is...
To continue reading
Request your trial
-
Danby v Lamb
...2 B. & C. 02 L, 4 D. & ii." 150 : and see per Parke, B., in Morgan v. Thwne, 7 M. & W. 400, 9 Dowl. P. C. 228. (a)2 See Ulosxman v. White, 7 C. B. 43. ll.C.B.(N.S.)28. SEARLE V. LINDSAY 863 byles, J. I also am of opinion that the rule should be absolute for a review of the taxation in this ......
-
Cullen, Allen & Company v Barclay
...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. CULLEN, ALLEN & CO. v. BARCLAY (1). 1......