DETINUIT, practice. He detained.
2. Where an action of replevin is instituted for goods which the defendant1 had taken, but which he afterwards restored, it is said to be brought in the detinuit; in such case the judgment2 is, that the plaintiff recover the damages assessed by the jury for the taking and unjust detention3, or for the latter only, where the former was justifiable4, and his costs. 4 Bouv. Inst. n. 3562. 3. When the replevin is in the detinet, that he detains the goods, the jury must find in addition to the above, the value of the chattels5, (assuming they are still detained, not in a gross sum, but each separate article must be separately valued, for perhaps the defendant may restore some of them, in which case the plaintiff is to recover the value of the remainder. Vide Debet et Detinet.
DEVASTAVIT. A devastavit is a mis-management and waste by an executor, administrator6, or other trustee of the estate and effects trusted to him, as such, by which a loss occurs.
2. It takes place by direct abuse, by mal-administration, and by neglect.
3. - §1. By direct abuse. This takes place when the executor, administrator, or trustee, sells, embezzles7, or converts to his own use, the goods entrusted8 to him; Com. Dig. Administration, I 1; releases a claim due to the estate; 8 Bac. Abr. 700; Hob. 266; Cro. Eliz. 43; 7 John. R. 404; 9 Mass. 352; or surrenders a lease below its value. 2 John. Cas. 376; 3 P. Wms. 330. These instances sufficiently9 show that any wilful10 waste of the property will be considered as a direct devastavit.
4. - §2. By mal-administration. Devastavit by mal-administration most frequently occurs by the payment of claims which were not due nor owing; or by paying others out of the order in which they ought to be paid; or by the payment of legacies11 before all the, debts have been satisfied. 4 Serg. & Rawle, 394; 5 Rawle, 266.
5. - §3. By neglect. Negligence12 on the part of an executor, administrator, or trustee, may equally tend to the waste of the estate, as the direct destruction or mal-administration of the assets, and render him guilty of a devastavit. The neglect to sell the goods at a fair price, within a reasonable time, or, if they are perishable13 goods, before they are wasted, will be a devastavit. And a neglect to collect a doubtful debt, which by proper exertion14 might have been collected, will be so considered. Bac. Ab. Executors, L.
6. The law requires from trustees, good faith and due diligence, the want of which is punished by making them responsible for the losses which may be sustained by the property entrusted to them when, therefore, a party has been guilty of a devastavit, he is required to. make up the loss out of his own estate. Vide Com. Dig. Administration, I; 11 Vin. Ab. 306; 1 Supp. to Ves. jr. 209; 1 Vern. 328; 7 East, R. 257 1 Binn. 194; 1 Serg. & Rawle, 241 1 John. R. 396; 1 Caines Cas. 96 Bac. Ab. Executor, L; 11 Toull. 58, 59, n. 48.
