Trespass to goods is a wrongful interference with the right of possession. It may take innumerable forms such as the scratching of the panel of a coach, removing the tyre from a car, injuring or destroying goods or, in the case of animals, beating or killing them or even infecting them with disease. The injury should be direct and not consequential. It is no defence to say that the defendant was not negligent or that he had not the intention to cause injury to the goods or the plaintiff.
A trespass in an interference
with the possession, and the plaintiff cannot sue unless he shows that he had a
possession over the goods at the time of the interference. A man who had no
possession of certain goods, may sue for the conversion; for the latter action
is based on the title to goods while the trespass is solely based on the
possession of the goods. The distinction between the action of trespass and
trover is well settled: the former, that is trespass is founded on possession;
while the latter, that is the trover is founded on property.
But there are a few
exceptions:-
1. A
trustee, though not in possession, can sue a third person for trespass, for the
injury to the chattels in the hands of the beneficiary.
2. An
executor or an administrator can sue for the trespass to goods of the deceased
even though the executor has not obtained the probate or the administrator has
not taken out the letters of the administration.
3. The
owner of a franchise ( eg: a right to take a wreck or treasure trove) can take
action against anyone who seizes the goods before he himself can take them. In
the case of the franchise, the possession is deemed to be with the owner of the
franchise.
Major case law include:-
Bailiffs of Dunwich vs. Sterry:
In the above case, the plaintiff
had the right to wreck at Dunwich and the defendants took a cask of whisky from
a wreck before the plaintiff could get it. The defendants were held liable for
trespass for the right to the possession draws after it a constructive
possession, which is sufficient to protect the action.
Improper obtaining of the
injunction to restrain the plaintiff from exercising his lawful rights over his
goods may amount for trespass even without the proof of the malice or want of
reasonable or probable cause.
· Remedies
for the Injuries to Goods
The main injuries to the goods
and their remedies are:
1. Detinue;
2. Replevin;
3. Trespass;
and
4. Trover.
Of these, trover is the technical
name given for the remedy of the wrong of conversion or converting or
wrongfully appropriating another’s goods.
1. Detinue:-
When ‘A’ unjustly detains ‘B’s
goods, ‘B’ can bring an action for detinue against ‘A’. The latter can either
five up the goods or pay damages. The plaintiff must prove firstly, that he is
entitled to the possession of the chattel and secondly, the defendant detained
it after demand had been made for its restoration. The defendant may refuse to
deliver the goods immediately on the demand and may claim a reasonable period
for the verification of the plaintiff’s claim. A successful plaintiff can
either obtain the goods back as in specific restitution or recover the damages.
Detinue is distinct from the
conversion, as in the conversion, it is never available where there is mere
detention without any wrong to the plaintiff’s title, as conversion is
essentially a wrong to one’s ownership of goods. Similarly, detinue is
different from mere trespass to the chattels, because the latter does not
necessarily involve detaining the articles at all, a mere blow at it or any
other meddling with it will constitute interference with the possession, that
is, the trespass.
2. Replevin:-
This is another ancient remedy of
English law under which if ‘A’ unlawfully takes ‘B’s goods by ways of distress
or otherwise, ‘B’ can get back the goods through the court on giving the
security to the court to prosecute an action of the replevin in the country
court or in the High Court.
Thus the plaintiff gets back his
article and the defendant can proceed against the security if he ultimately
succeeds in the action.
In India although there is no
such remedy of this specific name but there are other provisions in the Civil
Procedure Code which confer similar rights on the parties before the court.
3. Conversion:-
The tort
of conversion may be defined as any act in relation to the goods of a person
which constitutes an unjustifiable denial of his title to them. The essence of
the conversion, the wrong for which trover was the remedy, is calling in
question the title of another person to the goods. It was alleged-
a. That
the plaintiff was possessed of the goods,
b. That
he accidently lost them,
c. That
the defendant found them, and
d. That
the defendant converted them to his own use.
· The
difference between the Trespass and the Conversion:-
The
essential difference between the trespass and the conversion is that in
trespass, there is unauthorised interference with the possession of a thing;
whereas in conversion it is unjustifiable denial of the title to the goods.
Thus a person who had no possession of an article could not bring an action for
trespass although he may bring an action for conversion. In many cases two
wrongs may coincide, as when a man steals my goods and appropriates them to his
own use, but there are possible cases of divergence.
For example: if a
bailee misappropriates the goods bailed to him, the bailor, although without
possession, can bring an action for conversion.
There
will be a difference in the measure of damages in both for usually in
conversion the full value of the goods will represent the damages whereas in
trespass the interference may be of such a trivial nature that the damage
will be nominal.
· Title
of the Plaintiff:-
The
plaintiff can maintain the action if at the time of the defendant’s act he had:
a. Ownership
and the possession of the goods, or
b. Possession
of them, or
c.
Immediate right to possess them but without either ownership or actual
possession, but in this third case he will lose his action if the defendant
proves that the title of the goods is in some third party.
A bailee
who has only possession and not ownership ( which is in the bailor), can sue a
third party for conversion. A bailor has got the immediate right to possess as
against a mere bailee at pleasure.
· Methods
of Conversion:-
There can
be no conversion unless the defendant’s conduct in relation to the goods
amounts to an unjustifiable denial of the plaintiff’s title to them.
It is
possible for one to commit conversion of another’s goods by wrongfully:-
a. Taking
possession of them, or
b. By
abusing the possession of them when he has already got it, or
c. By
denying the latter’s title to them.
In this
case the denial should be absolute. The wrong doer need not be in the possession
of the goods in such cases. Merely taking the possession of the goods by itself
will not constitute conversion. A mere taking unaccompanied by an intention to
exercise permanent or temporary dominion may be trespass but it is no
conversion. Conversion by abusing the possession may be where one having
previous possession of a thing, may convert it to his own use by various means
such as sale, pawning or otherwise disposing of the goods. This will include
even the destruction of them or altering their nature.
There may
be a conversion of the goods even though the defendant has never been in the
possession of them, if he has acted in such a way as to deny absolutely the
right of the owner or to assert a right which is inconsistent with the owner’s
right.
· Title
of the Finder:-
A finder
of a chattel has such a title as will enable him to keep it against every one
with 2 exceptions:
a. The
rightful owner, and
b. If
the rightful owner makes no claim there is a conflict of claims between the
possessor of the land on which the chattel is found and the finder of the
article.
The law
then seems to be that where the things are found in or up on the land and their
owner is untraceable, the possessor of the land is presumed to be the possessor
of the things; but that this presumption is rebuttable by the evidence that the
possessor had no manifest intention to exercise the control over them. The
right is subject to the superior right of the occupier of a building to retain
the chattels attached to that building and also to retain the chattels on or in
it if he manifests an intention to exercise the exclusive control over the
building and the things which were on it. The same rule applies to articles to
the articles found in or attached to the land.
Major
case law include:-
Waverly B
C vs. Fletcher:-
In the
above case, it was held that, where an article is found in or attached to the
land, as between the owner or the lawful possessor of the land and the finder
of the article, the owner or the lawful possessor of the land has the better
title. Where an article is found unattached on land, as between the
two, the owner or the lawful possessor of the land has a better title only if
he exercises such manifest control over the land as to indicate an intention to
control the land and anything that might be found on it. In this case the
defendant using a metal detector discovered a metallic object and after digging
some nine inches found a valuable medieval gold brooch. In a suit by the
plaintiff, the local authority, which owned the public park, it was held that
the local authority had superior right to have the brooch as against the
finder.
· Re
caption of the Goods:-
Mere
voluntary re caption of the goods is not conversion of them provided that the
receiver honestly believes that the transferor has a title which enables him
lawfully to transfer the goods. The possession of an involuntary bailee to whom
goods are sent by the owner is a rather difficult one.
The law
may be stated thus:
a. He
must not wilfully destroy or damage the goods.
b. The
strict duties of the bailee cannot however be imposed upon him against his
consent or without his knowledge.
c. Even
negligence on his part will make the defendant liable.
d. An
involuntary bailee is not liable if he has acted reasonably in the return of
the goods.
Anyone
who makes himself an active party to an unauthorised transfer of possession
will be liable for the tort of conversion. ( Hirot vs. Bott ).
· Demand
and Refusal:-
A demand
and refusal is always evidence of conversion. If the refusal is in the
disregard of the plaintiff’s title and for the purposes of claiming the goods,
either for the defendant or a third person, it is conversion. If the refusal is
by a person who does not know about the plaintiff’s title and, having a bona fide
doubt, as to the title of the goods, detains them for a reasonable time, for
clearing the doubt, it is not conversion.
· Defences
to Conversion:-
1. Jus
Tertii:-
One of
the defences to an action for conversion is jus tertii, that is, some third
party has title superior to that of the plaintiff. This plea is subject to
certain limitations:
a. Where
the plaintiff was in possession at the time of conversion, the defendant cannot
set up jus tertii.
b. Where
the plaintiff had no actual possession at the time of the conversion, but only
a right to possess; jus tertii can be pleaded by the defendant.
A bailee,
if sued by his bailor, is stopped from denying the plaintiff’s title, although
he may have some other defence. A defendant who has in truth committed no
conversion may be held liable for one because he is estopped by his own act
from alleging the fact which constitutes his defence.
· Measures
of Damages:-
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