Date and Time: Sunday, 4 December 2022 8:45:00PM MYT

Job Number: 185334816

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1. DETINUE
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 DETINUE
Words, Phrases and Maxims

Words, Phrases and Maxims > D

DETINUE

Detinue, is a writ which lies against him, who having goods or chattels delivered to keep, refuseth to re-
deliver them. In this action of detinue it is necessary to ascertain the thing detained in such a manner as
that it may be specifically known and recovered. Therefore it cannot be brought for money, corn or the
like, for that cannot be known from other money or corn; unless it be in a bag or a sack, for then it may be
distinguishably marked. (Tomlin’s Law Dic; Termes de la Ley)

Detinue is a mode given for the recovery of a specific thing and damages for its detention.
Though judgment is also rendered in favour of the plaintiff for the alternate value, the thing itself is the main object
and inducement to the allowing of the action. The action is not adapted to the recovery alone of the
value of the thing detained, nor can it be maintained therefore.

‘In order to ground an action of detinue, these points are necessary; first, that the defendant came
lawfully into possession of the goods, as either by delivery to him or by finding them; second, that the plaintiff have
a property in them; third, that the goods themselves be of some value; fourth, that they be ascertained in point of
identity. (Jac Law Dict Title ‘Detinue ‘) This form of action, and the mode of pleading adapted to it, no
longer exist, but the remedy is afforded under a modified form. The thing must also be identified with
reasonable certainty.

A claim in detinue lies at the suit of a person who has an immediate right to possession which is as
constructive possession of goods against a person who is in actual possession of the same but who upon proper
demand fails or refuses to deliver them up without lawful excuse.

DETINUE AND REPLEVIN DISTINGUISHED. Detinue is an action ex delicto, and is for the
most part superseded by replevin. It is preferable to replevin where the plaintiff is indifferent whether he
recover the goods or the value.

DETINUE AND TROVER DISTINGUISHED. The action of detinue lies for the recovery of the
property itself, with damages for the wrongful detention of it, while the action of trover lies for the recovery of
damages for the wrongful conversion of the property.

An action to recover damages for the conversion by the defendants of a large quantity of logs of timber
belonging to the plaintiff is not either in form or in substance, an action of detinue, in which the plaintiff seeks to
recover a specific chattel which the defendant detained from him, and in which the judgment would be that the
defendant do deliver the chattel or pay the value of it. The action more resembles what used to be called
an action of trover. The subject-matter of the action is timber, an ordinary article of commerce, which,
according to the evidence of the usage of trade, is disposed of in the same year in which it arrives at Rangoon (the
market for the timber); either by sale or by being cut up, or in various ways. The plaintiff could not claim
four years afterwards the restitution of the particular logs, His claim is, and must be, to the damages which he has
sustained by the conversion of the logs by the defendants at that date [5 I.A. 130; 4 C 116 (119-20); 3 Sar 622; 3
Suth 515]

LL

The wrongful detention of goods after the plaintiff’s lawful request for their return: John F Goulding Pty
Ltd v Victorian Railways Cmrs (1932) 48 CLR 157 ; [1932] VLR 408 . Detinue arises irrespective of the
manner of the original acquisition. The right of action accrues at the time of the refusal to hand over, not
at the time of the original acquisition, even if that acquisition is wrongful: John F Goulding Pty Ltd v Victorian
Railways Cmrs. 2. An action brought by a person in respect of an act of detinue. A
successful plaintiff in an action for detinue would be most likely to seek and obtain an order for the chattels to be
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DETINUE

returned to the possession of the plaintiff: Juhlinn-Dannfelt v Crash Repairs Pty Ltd [1969] QWN 1 .
However, damages can be awarded as compensation: for example, if the chattels have been destroyed.
The action is available to the person having the right of possession of the goods, but not necessarily ownership.

ALD

If the defendant fails to enter appearance in a detinue action the plaintiff may either enter an
interlocutory judgment for the delivery of the property or enter judgment for the value of the property which is to be
assessed including cost. The plaintiff may also apply for a writ of specific delivery if he desires the return
of the goods. In Abbey & Sheet Metal Co v Barson Products (1948) 1 KB 493 , Evershed LJ held: ‘This
rule and the other relevant rules, limit the rights of the parties in an action for detinue so as in effect to preclude the
plaintiff from recovering, or the defendant from restoring, the goods detained where judgement in default of
appearance or defence has been obtained.’

It was observed in Juhlin-Dannfelt v Crash Repairs Pty Ltd (1969) QWN 1 that a successful plaintiff in an
action for detinue would most likely seek to obtain an order for the chattels to be returned to the plaintiffs.

However, damages may be awarded as compensation, for example, if the goods have been destroyed.
It is the value of the goods detained and not the value at the date of subsequent return that is to be assessed.

Rosenthal v Alderton and Sons Ltd [1946] KB 374 at Per Evershed J

What of detinue? Counsel for the plaintiffs says that there was detinue because the
defendants refused to unload the goods. Counsel referred to Howard E Perry & Co Ltd v British
Railways Board [1980] 2 All ER 579 , where Megarry J held there was conversion of the second type when the
defendants in that action refused to deliver to the owners a cargo of steel which was lying in their depot because
they feared industrial action by a third party. Megarry J held that an uncertain period of detention,
whether long or short, amounted to conversion. I do not think that this decision helps the plaintiffs as
the defendants did not actually refuse to deliver the goods to the plaintiffs. On the evidence, the plaintiffs
had made no demand for delivery of the goods to them, but merely for discharge back into the warehouse into the
custody of the defendants. The position here was that the defendants insisted on retaining possession of
the goods on board the Kota Agung without the consent of the plaintiffs rather than in the warehouse with the
plaintiffs’ consent. I do not think that there was any detinue in these circumstances. Indeed,
but for the fire at Khorramshahr, the goods might have been carried back to Bangkok, as arranged, and the
question of detinue would never have arisen. There is, to my mind, no distinction in principle between
the two situations.

On the evidence, it is clear that the defendants had no right to retain possession of the goods on board
the Kota Agung. Their wrongful possession constituted trespass to the goods. The goods
were lost whilst they were still in unlawful possession. I think the defendant’s position was, by analogy to
a bailee’s position in Mitchell v Ealing London Borough Council [1979] QB 1 , that of insurers and in the events that
happened, the defendants were liable for the loss of the goods, whether or not they were negligent.

Owners of Cargo lately laden on Board the Ship or Vessel ‘Kota Sejarah’ v Owners of the Ship or Vessel
‘Kota Sejarah’ [1991] 1 MLJ 136 at 145 Per Chan Sek Keong J

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