CHAPTER V.

TRESPASS TO GOODS, DETINUE AND CONVERSION.

We now turn to personal property. Our law provides several different methods of vindicating the right of possession. In this chapter we propose to deal with five separate causes of action:-Trespass to Goods, Detinue, Replevin, Wrongful Distress and Conversion. These can perhaps best be illustrated by preliminary examples.

Let us suppose that A. is in lawful possession of goods. It does not matter whether he is the true owner, or whether he is in possession of them with the consent of the true owner. All that is necessary is that he should be entitled to the immediate possession of them.

Next, suppose that B. wrongfully seizes those goods and takes them out of A.'s possession; or that in some other way he personally applies direct force to the goods. It does not matter whether such wrongful force damages the goods or not; for B. had no right to touch them at all. The mere infringement of A.'s right of possession entitles him to recover some damages from B. If B. seized the goods or caused them to be seized in any open or notorious manner, so as to injure A.'s reputation or so as to cast doubt on A.'s right to the possession of the goods, a larger amount of damages may properly be awarded-e.g., if B. distrained them for rent which was not due, his act will clearly cast doubt on A.'s solvency. If in removing the goods B. breaks or injures them, the amount of damages which he must pay will be still further increased. This is A.'s first cause of action-viz., trespass to goods.

Next, let us assume that B. removes the goods to some premises of his own, and keeps them there without A.'s

consent.

Here at once a second cause of action arises—viz., an action of detinue. For, in addition to the insulting invasion of his right of possession, A. is now deprived of the use and enjoyment of the goods to which he is entitled. In the case of household furniture, for instance, it may be that he has no longer a table to sit at or a chair to sit on; in the case of wares and merchandise, his business will no doubt be injured by this sudden and unlawful reduction of his stock-in-trade. The amount of damages which B. must pay for this detention will, of course, depend on the length of time for which he withholds them from A.

owner.

But all this time the goods remain the property of the true B.'s unlawful acts in no way affect the title to the goods. If A. be the owner of the goods, he cannot so far claim to be paid the value of them by B.; for, as we shall see, he is entitled to have them returned to him. But we will now suppose that B. does some further wrongful act which amounts to an assertion of ownership in himself: as, for instance, if he sells them to an innocent purchaser in market overt or wantonly destroys them. He has now permanently deprived A. of the use and enjoyment of the goods; he has deprived A. of his whole interest in them. He has also deprived the true owner, if he be other than A., of his property in the goods. B. is therefore liable for the full value of the goods, whether he acted in good faith in ignorance of the true owner's title or not; and A. can recover the full value of the goods, even though his interest in them be a limited or partial one.

The wrong-doer cannot interest, though if A.

set up that A. had only a partial recovers the whole value he may have to account to the owner for the value of the latter's interest in the goods.' Here, then, we have a third cause of action in A., which is called an action of conversion.

Now let us suppose that B., instead of destroying the goods, sells them to C., an innocent purchaser for value, but not in market overt, and that C. had no reason to suppose that B. was not the true owner of them. No property in the

1 The Winkfield, [1902] P. 42.

goods passes to C., because B. had no property to pass. C. is not to blame in the matter, and so far no action lies against him. But as soon as A. discovers where the goods are and gives C. notice of his title and demands possession of the goods from him, any further detention of them on the part of C. will be a tort. He is entitled to a reasonable time for making proper inquiries; if he ascertains nothing to cast doubt on A.'s claim, he ought to return them to him at once. If he fails to do so, he will be liable for damages in an action of detinue. Moreover the refusal to give the goods up, after a formal demand duly made, is some evidence to go to the jury of a conversion. But C. will in no case be liable to pay any damages for the original trespass; he has not directly violated the true owner's possession.

Lastly, if B. sold the goods to C. for a full price, the true owner of them may, if he thinks fit, waive the tort and recover from B. the money which C. paid him.1

Under the old common law there were four different remedies for the wrongful deprivation of goods, viz. :-the actions of trespass to goods, detinue, replevin and trover.2 Trespass and trover were actions to recover damages merely; the first for the injury to the possession, the second for the loss of the property; but the actions of detinue and replevin were both brought for the return of the goods. The actions of trespass and replevin could be maintained against any one who forcibly took the goods out of the possession of the plaintiff; the actions of detinue and trover lay also against any person who subsequently came into possession of the goods by any means and wrongfully withheld them from the plaintiff. In trespass and replevin the plaintiff was always in possession of the goods and the defendant out of possession at the time when he commenced his wrongful acts. In detinue and trover, on the other hand, the plaintiff was always out of possession and the defendant in possession of the goods when the tort was committed.

These were all actions founded on the right of possession. Curiously enough, there was no form of action at common law merely to determine a dispute as to the ownership of the goods, though questions of ownership would frequently arise indirectly, as, for example, if the defendant in justification of his conduct asserted that the goods were his and that he had therefore an immediate right to the possession of them. But now, since 1883, a plaintiff can bring a separate action to obtain from the Court

1 Smith v. Baker (1873), L. R. 8 C. P. 350.

2 This was the old name for an action of conversion. As the defendant was not charged with any trespass, it was assumed that he had innocently found the goods Somewhere, and then wrongfully converted them to his own use.

TRESPASS TO GOODS.

a declaration that certain goods are his property without claiming possession of them or asking for any other consequential relief; he can even do so although no such relief could in the circumstances be claimed.1

But since the Judicature Act, 1873, strict forms of action are abolished." The test of obtaining relief is whether the suitor has a good cause of action of any kind, however his pleadings may be framed. The plaintiff need no longer precisely formulate his claim in detinue, trespass or trover. It will be sufficient if on the facts, which he has alleged in his pleadings and proved at the trial, he is entitled to judgment in any form of action. And a claim for the return of the goods or their value can now be joined in the same action as a claim against the same defendant for damages for detinue or trespass.

TRESPASS TO GOODS.

Any wrongful act which directly disturbs any one in his lawful possession of goods, however slight or temporary such disturbance may be, is a trespass to goods. If the defendant directly causes any damage to the goods while they are in the plaintiff's possession, or without damaging them wrongfully seizes or touches them in any manner which directly disturbs the plaintiff's right of possession—à fortiori, if he removes them out of the actual and immediate control of the plaintiff without his consent-he is guilty of a trespass, for which an action will lie without proof of any special damage or of malice.3

To succeed in such an action the plaintiff must prove— (i.) that he was in actual possession of the goods in question (though in some cases, apparently, it is sufficient if he proves that he was legally entitled to the immediate possession of them); and

(ii.) that by some act of the defendant's his possession of

them was disturbed.

In former times the right to bring an action of trespass to goods was confined to the man, or the personal representatives of the man, who was in possession of the goods at the time

1 Order XXV., r. 5; and see London Association of Shipowners, &c. v. London and Forge Co., [1906] 2 Ch. 498.

2 Hanmer v. Flight (1876), 35 L. T. 127.

3 As to the distinction between an action of trespass and an action on the case in this respect, see Clissold v. Cratchley, [1910] 2 K. B. 244.

when the trespass was committed. But now in some cases a person in whom is vested a present right to the immediate possession of goods is permitted to bring this action. If the owner of the goods is in possession of them at the date of the trespass, he of course can sue. But if he voluntarily places the goods in the exclusive possession of another person (who is not his servant) for a definite period, that other is-during the period-the only person who can bring an action of trespass. As soon as the period has expired, if the goods be not returned, both the owner and the other person can sue-the latter, because he is in possession of them; the owner, because he has now a right to have them returned to him. A servant is not deemed to be in possession of the things which he holds and uses on behalf of his master; he has merely the custody of them his master has the possession, and he alone can sue.

It is a trespass to goods to write defamatory matter across the face of a conductor's licence or a servant's character; such writing disturbs the plaintiff in the enjoyment of his rights.2

An executor's right to the goods of the testator accrues immediately on his death, so that an executor can maintain an action of trespass to the goods of the testator if they are interfered with by a stranger between the death and grant of probate. So an administrator may sue for a trespass to the goods of his testator committed between the death and the grant of letters of administration. The possession of the deceased enures for the benefit of his personal representative.3

Again, if goods are delivered to a bailee and are taken out of the bailee's possession by a stranger, the bailee has all the rights and remedies which the owner would have had if there had been no bailment. And so has the bailor in those cases of bailment in which he is entitled to resume possession of his goods at will, such as a deposit for safe custody or a gratuitous loan. In other cases he cannot sue, because he has neither possession nor a right to the immediate possession. And if the owner has contracted to give the bailee exclusive possession of his goods, as upon a hiring or pledge, his right to recover the goods from strangers wrongfully possessed of them is suspended during the continuance of the bailment. But when a bailment of any kind is determined, the owner may sue to recover his goods or their value from any person into whose hands they may have come, as well as from the bailee.1

1 Bailiffs of Dunwich v. Sterry (1831), 1 B. & Ad. 831; but see R. v. Clinton (1869), 4 Ir. R. (C. L.) 6.

Hurrell v. Ellis (1845), 2 C. B. 295; Rogers v. Macnamara (1853), 14 C. B. 27; Wennhah v. Morgan (1888), 20 Q. B. D. 635.

8 Morgan v. Thomas (1853), Exch. 302; Kirk v. Gregory (1876), 1 Ex. D. 55. Lotan v. Cross (1810), 2 Camp. 464; White v. Morris (1852), 11 C. B. 1015 ; and see Johnson v. Diprose, [1893] 1 Q. B. at p. 515.