Detinue was the only action allowed by the common law to recover specific goods except in the few instances where replevin would lie.
The obligation upon which detinue was based arose from the possession of property by the defendant which he was under a duty to deliver to the plaintiff. This obligation most commonly arose upon a bailment; but also arose where the defendant had sold goods to the plaintiff and the ownership had become vested in the plaintiff.29 The action was also allowed in cases where the defendant had wrongfully come into possession of the property. And as the remedy of assumpsit never came into use in such a case,30 detinue came to be regarded as sounding in tort rather than in contract; or at least partaking in some degree of the character of each of these branches of the law.31
26 See The Seisin of Chattels, 1 Law Q. Rev. 326, by Maitland; The Disseisin of Chattels, 3 Harv. L. Rev. 23, 313, 337, by Ames.
27 The action of account and the obligations upon which it might be based are analysed by Langdell in 2 Harv. L. Rev. 243-257.
28 See a full examination of the early authorities by Hening in 3 Select Essays in Anglo-American Legal History, 343.
29 8 Harv. L. Rev. 258,259, by Ames.