Graves v. Kennan

2 Va. Col. Dec. 41

• Court: General Court of Virginia
• Decided: October 15, 1734
• Status: Published

Opinion

In Detinue for a Chest of Medicines of the value of 4z0£. upon Non detinet pleaded the Jury found that the Deft, did detain the Chest that it was of the Value of six Pence and Damages 10£. and Judgment for the Pit. below.

Randolph for the appellant

sayed it would not be good in Trover and that Trover and Detinue were all one and cited Palm. 393. Stile 482. 1 Ven. 114. 2 Lev. 85. 3 Lev. 18. 1 Vent. 317. Sid. 445. Carth. 131.

Barradall f Appellee

Trover and Detinue are not the same and greater Certainty is required in Detinue than Trover 2 Salk. 654. But this is certain enough in Detinue All the Certainty requisite is that it may be described to the Jury and known by the Sherif when he comes to make Delivery Co. Lit. 286: b. 2 Bulstr. 308. And that may very well be in this Case It would be almost impossible to describe every particular Medicine and the Pit. must have failed in his Proof if he had done so.

But if Trover and Detinue are all one then this Declaration is certainly good for Trover will lie of a Box full of Linnen of the Value of 20£ Cro. Jac. 664. for a Library of Books 1 Ven. 114. for 290 pecies Argenti 1 Salk. 219. for 20 Ounces of Cloves and Mace without distinguishing how much of either 2 Sal. 654. for a Case of Spirits Far. 141. And besides the Cases above cited 2 Saund. 74. 1 Sid. 98. 2 Show. 315. Skin. 147. 3 Lev. 336. 1 Sid. 263. 1 Keb. 807.

And per tot. Cur. prceter Carter the Declaration is certain enough.

Upon an Appeal Exception was taken to the Verdict that it was in certain finding that the Deft, did detain not that he doth detain and so not pursuant to the Issue Besides the Jury value the Chest only to six'Pence yet giyelO^. Damages which is unreasonable and absurd.

And for these reasons the Judgment was reversed and the Record remitted to the County Court for a new Trial

Exception was also taken to the Declaration that Detinue would not lie for a Chest of Medicines without setting forth the particular medicines.

[42] A question was made if Lands granted before 1710. should be forfeited for want of Paiment of Quitrents within the Act of 1710. and that of 1713. And Adjudged that such Lands are not wdthin those Acts.

But qucere of this Judgm’t for the Act of 1713. seems clearly to comprehend them vid. S. 9 & 10.

Besides'there is this Inconvenience If the Patentee of Lands granted before the Act deserts the Land and removes out of the Colony the King can have no remedy for the Quitrent and yet can’t grant the Land to another

Yet in April 1741. the same Point was adjudged that these old Grants were not within those Acts The Case was between Bourden & Hill and the Pet. suggested as well the want of Cultivation as the nonpaim’t of the Quitrents It was proved that there had been no Cultivation within 5.6 years (The Pat was granted in 1674.) but the Court sayed it ought to be proved there never was any Improvement, or they wo’d presume it at this Distance of Time w’ch seems a strange Opin. Especially in the Kings Case. The Pet. was dismissed.