answer to the detinue."(a) So, Dyer, (b) in detinue for forty quarters of wheat, the plaintiff declared simply on a contract for wheat, &c.; the defendant pleaded, that the plaintiff bought of him eighty quarters, upon condition that, when plaintiff came for the wheat, he should pay immediately, or otherwise the whole to be void; and, further, that the plaintiff had received thirty quarters, and paid him for them, and, at another day, came and received ten quarters, and had not paid for them, so that the contract became void;-thus not traversing the contract as stated in the declaration, simpliciter, but going on to state circumstances which would justify him in withholding the corn. Then the question was raised, whether the defendant ought not to have concluded his [*48 plea with a traverse; because, it was said, the plaintiff states an unconditional contract, which binds the defendant to deliver at all events, and the defendant says it is a conditional contract. No, said the court, that ought to come from the plaintiff. If the plaintiff means to insist that there was not such a contract as that stated in the plea, but such as his declaration implies, he should state it in his replication. Now, that case shows that the statement in the declaration is not a statement which binds the plaintiff, but that he is at liberty afterwards to answer the plea of the defendant. The defendant must show that the bargain stated by him justifies him in that which is the gist of the action,—the detainer; and then the plaintiff is at liberty to deny the contract as the defendant states it, or to show (that being the true contract) that there is a wrongful detention on the part of the defendant. Bateman v. Ellman is exactly analogous to that case which I have mentioned from Dyer. The plaintiff declared, simpliciter, on a bailment to the defendant of plate, to be re-delivered on the 17th of May: on a plea of non detinet,— which put the whole of the declaration in issue (as it seems to have been considered in Mills v. Graham),-the jury found specially, that the goods were bargained and sold to the defendant by indenture, on a condition, that, if the plaintiff paid such a sum upon the 17th May fol

(a) For this position Lord Brooke cites an original case,-not reported in the Year Books,of 3 H. 4. And see the placitum in Brooke translated, 7 Vin. Abr. p. 33, pl. 8.

(b) Anon. fo. 29, b. But, although that case is intituled "Detinue," it is obvious that the action was not detinue,-i. e. an action brought to recover in specie the possession of certain speeific goods, but debt in the detinet, to enforce the delivery of a certain quantity. The plaintiff declared upon the non-delivery to him of 40 quarters of wheat, which he alleged he had contracted to buy of the defendant. No possession was laid in the plaintiff; nor was there any allegation of transfer or change of the possession, by bailment, finding, or otherwise. The defendant might have satisfied the engagement stated in the declaration, by the delivery of any 40 quarters which came within the description of the wheat bargained for. If wheat had been delivered to the plaintiff, and afterwards bailed to the defendant, an action of detinue would have lain. This distinction is recognised in H. 6 E. 4, fo. 11, pl. 7.

The case in Dyer appears to go much beyond the point for which it is cited by BAYLEY, B., in the above judgment; and it seems not to be reconcilable with the authorities in which it has been decided, that, where the contract of sale is, in truth, conditional, and the plaintiff declares as upon an absolute contract, the defendant cannot plead the condition, but must simply deny the contract declared on. See Hayselden v. Staff, 5 Ad. & E. 153, 6 N. & M. 659, and the cases there cited.

lowing, the bargain should be void; and they found that the money was paid on that day. No doubt that was a finding of a delivery on different terms from those stated in the declaration; but the court said it was well enough; for, the condition being performed by payment of the .money, the plaintiff ought to have the goods again, and then the detention. is a tort. That case, as it seems to me, shows that the plaintiff is not tied down to the terms of bailment stated in his declaration." And, *49] after observing *upon the cases of Kettle v. Bromsall and Mills v. Graham, the learned baron concludes: "Thus, the authorities seem to show, that, though a bailment is stated in the declaration, it is not an essential part of the declaration, and that the plaintiff may or may not at his election, in his replication, make the terms of the delivery material; but it is for him only to do so; and he is not tied down to the species of bailment stated in his declaration: and, if he can make out that he was entitled to the possession and re-delivery of the goods, and that the defendant wrongfully withheld them, he will be entitled to recover." That case was followed in Walker v. Jones, 2 C. & M. 672. Mason v. Farnell, 12 M. & W. 674, shows, that, since the new rules, the defendant cannot, under non detinet, or not possessed, set up a title inconsistent with the plaintiff's title. In Whitehead v. Harrison, 6 Q. B. 423, a count in detinue stated that the plaintiff delivered an indenture of him the plaintiff to the defendant, to be re-delivered on request, and then averred a detainer after request. The plea traversed the bailment and, upon demurrer thereto, Lord DENMAN, delivering the judgment of the court, said: "Doubtless, before the new rules, the common bailment was not traversable; as was decided by the court of Exchequer in the cases of Gledstane v. Hewit and Walker v. Jones. The only question is, whether the new rule which has confined the plea of non detinet to a simple denial of the detainer, makes any difference. That such is the effect of the new rule, see the rule itself, (a) and Jones v. Dowle, 9 M. & W. 19. It was argued for the defendant that he could not traverse the property of the plaintiff, because the words 'of the plaintiff' are immaterial; and are not to be found in the old entries in Rastall and other books; and that, as the case of the plaintiff might *50] really consist of some attempt to prove an actual contract of bailment, there is now no way to put him upon proof of his case, unless this traverse is allowed: then it secms most unjust to compel the defendant to plead specially, and take the onus of proof on himself, instead of being able, in this, as in all other cases, to put the plaintiff upon proof of his right. On the other hand, the plaintiff relies on the authorities, which show that he is at liberty, notwithstanding the averment of bailment, to show any other mode by which the goods came into the hands of the defendant, and consequently that the bailment is not traversable. The recent case, in the Exchequer, of Mason v. Farnell, favours this view of

(a) Hilary, 4 W. 4. Pleadings in particular Actions, III.

the case and, however hard it may appear upon the defendant, we feel ourselves bound by the authorities to hold that the plea traversing the common bailment is bad. It should seem that some alteration is requisite in the declaration, and that the plaintiff should be bound to state truly how the goods came into the hands of the defendant; and then his statement would be traversable:(a) but, until such alteration be made by the proper authority, we must abide by the decided cases." In Clements v. Flight, 16 M. & W. 42, the declaration alleged that the plaintiff delivered certain paper-writings, purporting to be scrip-certificates for shares, to the defendant, to be re-delivered on request, after payment to him of a certain sum, averring that that sum was paid to the defendant, and assigning for breach that the defendant had not delivered the paper-writings, though requested, but detained the same: the defendant pleaded that the paper-writings were deposited with him as a pledge and security for 2107. advanced by him to the plaintiff, and that, on payment of that sum, the defendant tendered and offered to deliver up and return them to the plaintiff, *who then refused to receive them and the plea [*51 was held bad, on demurrer, for denying the detention argumentatively, and for amounting to non detinet. POLLOCK, C. B., in giving judgment, said: "In the course of the argument, it was suggested that the plea was bad, as containing an argumentative denial of the special bailment in the declaration. On reference to the late case of Whitehead v. Harrison, and the authorities there referred to, and particularly Gledstane v. Hewit, and Brooke's Abridgment, tit. Detinue de Biens, pl. 50, it seems, that, not only the common bailment, but any special bailment laid in a declaration of detinue is merely surplusage, and not traversable, (b) the gist of the action being, the detainer of the plaintiff's goods, which the defendant must answer. The plea, therefore,

was not open to this objection."(c) [V. WILLIAMS, J. The principle seems to be based on the doctrine that it is no departure to state in the replication a totally different case from that in the declaration. MAULE, J. Suppose the goods were delivered to the defendant, to be re-delivered by him to the plaintiff on payment of 107., how is the defendant to raise that, otherwise than by traversing the delivery modo et forma? V. WILLIAMS, J. The new rules seem to assume that the declaration will in all cases state that the goods are the goods of the plaintiff.]

Greenwood, in support of the rule. The question is, whether the proposed plea is so clearly non-issuable that the defendant ought not to be allowed to put it upon the record. The action must be undefended, if the whole defence is, that the property is, and always has been, the defendant's. It is true that many of the old *precedents do not contain any allegation of property in the plaintiff. But there are

(b) Suprà, 47 (a).

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(a) Vide tamen, Dyer, 29 b, suprà, 47. (e) If the bailment were directly traversable, a plea of lien would appear to be bad, as an argumentative traverse of the unconditional bailment alleged.

VOL. VII.-6

D 2

instances of special traverse of the bailment in manner and form as alleged. One in Rastall, Title Detinue de Chattels, fo. 212, is as follows: “H. B. summ fuit ad respond. J. B. de placito qe reddat ci catalla ad valenễ xx. l. que ei injuste detinet, &c. Et unde, &c., q: ipse die, &c., anno, &c., apud A., deliberasset cuidam J. A. catalla pd., videl't, unam crateram argenti, &c., ad valenc, &c., et unam aliam crateram, ad valenč, &c., salvo custodiend., et eidem J., cum inde requisit. fuisset, reliberand.; virtute cujus liberationis idem J. de crateris fuit possessionat. Idemq J. A. sic inde possessionat' easdem crateras, &c., apd. A. pred. die, &c., ann, &c., casualiter amisit: et pred. crater, &c. postea, scilicet, die, &c., añ, &c., ad manus et possessionem ipsius H. per inventionem inde apd. A. pred. devenissent; p q actio accrevit eidem J. ad exigend' et hend' de prefat' H. crateras, &c.: idem tamen H., licet sepius requisit', Bd' crateras, &c. eidem J. nondů reddidit, sed ill' ei hucues reddere cõtradixit, et adhuc cõtradicit, ac illas ei adhuc injuste detinet. Unde dicit, &c." To which the defendant pleads-" Et pred' H., per C., attorñ suũ, veñ, &c., et dicit qe pred' J. action nõ, qa dicit q2 idem J. pd' xx. die J., apud A. pred', mutuat' fuisset de pref. J. A. x. l. eid' J., cũ inde requisit' fuisset solvend': et p securitate solutionis earund' x. l. idem J. B. adtunc et ibidem deliberavit eidem J. A. ẞd' crateras, &c., ad ea sibi custodiend' et retined' quousq idem J. B. solveret eid' J. A. pred' x. l. Virtute cujus liberationis idem J. A. de crater, &c. fuit possessionat'; et sic inde possessionat' obiit intestat'; post cujus mortem, p eo që ide J. A. tepe mort' sue fuit possessionat' de divs bon' et cat. in divs dioces. infř reg. dñi Regis Angl', reverendissimus in xpo pater T., epus Cantuarien. sequestravit oĩa bona et catalla que fuer pred' J. tempore mort' sue: et postea, *scilicet, sexto die N., anno, &c.,

*53] idem epus, per literas suas administrat', apud A., in com pred',

comisit eidem H. administrationem bonorum et catallorum que fuer pred' J. A. tempore mortis sue. Virtute cujus ide H. pred' crateras, &c., ut bona et catalla que fuerut pred' J. A. tempore mort' sue, apud A. pred' cepit, et inde fuit, et adhuc existit possessionat' qe q pd' J. B. pd' x. l. prefat J. A. in vita sua, nec eidem H. post mortem ejusdem J. A., nondum solvit; absque hoc quod pred' J. B. deliberavit crateras, &c., prefat' A., ad eas salvo custodied', et eid' J. B., cum inde requisit' fuisset, reliberad', in forma qua idem J. B., per narrationem suam pred' superi' suppoñ: et hoc parat' est verificare, unde pet' judm si pred' J. A. actionem, &c." And the plaintiff replies "Et pred' J. B. dicit qe ipse deliberavit Pf. J. A. crateras, &c., ad eas salvo custodied, et eid' J. B. cũ inde requisit' fuisset, reliberad', in forma qua idem J. B. p narrationem suam pred' superi' suppoñ: et hoc pet' q2 inquiratur per patriam, &c." [CRESSWELL, J. Is not that rather in the nature of a contract for safe custody, which would bind the defendant to a greater degree of care than an ordinary bailee would be bound to take? WILDE, C. J. The defendant is not there traversing the bailment alleged, but setting

up a different bailment. CRESSWELL, J. The defendant sets up a property in himself.] He traverses the bailment as alleged in the declaration. In Co. Litt. 283 a, it is said: "In detinue, the defendant pleadeth non detinet; he cannot give in evidence that the goods were pawned to him for money, and that it is not paid, but must plead it; but he may give in evidence a gift from the plaintiff, for that proveth he retaineth not the plaintiff's goods." Lord DENMAN, in the course of the argument in Whitehead v. Harrison, says: "There are two forms of declaration in detinue; one, alleging a delivery by the plaintiff to the defendant; the other, a *finding by the defendant. In the first, [*54 no right of property in the plaintiff is set up; in the other, it is. The distinction does not seem to have been contemplated in framing the new rules." [V. WILLIAMS, J. The averment in the declaration being altogether superfluous and immaterial, I cannot see why it should make any difference. CRESSWELL, J. Brooke's Abridgment, title Chartres de Terre, et detinue de eux, pl. 22, citing M. 9 H. 5, fo. 14, pl. 22, is a strong authority to show that the allegation of a bailment is immaterial: "In detinue of charters, the plaintiff (Sir John Grey) counts that they were delivered to Sir H. N. (Sir Hugh Hales) to safely keep, and that, after his death, the same charters came to the hands of the defendant, and does not show how, whether by bailment, trover, or as executor, or otherwise; and the opinion of the court was, that the count was good:" S. C. Fitz. Abr. tit. Detinue, pl. 33.]

WILDE, C. J. It seems to me that this plea ought not to be allowed, and that the refusal to allow it in truth places the defendant in no difficulty whatever. The proposed plea is opposed to the current of authorities from a very early period. From Brooke's Abridgment, downwards, all the authorities have uniformly held that the bailment in detinue is not traversable: and I do not find anything in the new rules to call for any alteration in this respect. In detinue, the gist of the action is the detainer: the bailment is altogether immaterial,-in the sense of being traversable; it is like the allegation of the loss, in a count in trover. The plaintiff may allege any bailment he pleases. The defendant may plead anything which tends to show his detention of the goods to be lawful. It may be that the plaintiff in his declaration sets up a true bailment; but he is not bound by it. The replication may set up the very bailment stated in the declaration, and so it *may become material. But, whether the matter appears in the declaration or not, is quite immaterial. I find no limitation or restriction of that rule in any of the cases and the reason is obvious; for, if the gist of the action is the detention, it follows that the defendant may show the detention to be lawful. The argument has proceeded upon an assumption that the defendant was under some difficulty in that respect. But that is altogether a misapprehension. It is competent to the defendant to show that the plaintiff was a stranger to the goods, or to set up any

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