LAW OF TORTS

PART II

CONVERSION

BY

FRANK LESLIE SIMPSON, A.B., LL.M.*

CHAPTER I.

INTRODUCTION-DEFINITION.

1. Actions for wrongful taking of personalty.— There were four actions at common law, which lay for the wrongful taking or detention of the personal property of another, trespass de bonis asportatis (commonly called trespass de bonis), that is, for goods carried away, replevin, detinue and trover.1 These actions differed, one from another, not only in the elements of the wrongful act complained of, but also in the result sought to be obtained by the plaintiff.

2. Replevin. In replevin, the plaintiff seeks to recover the chattel specifically, and this action differs from trespass in that, in trespass, the plaintiff seeks to recover damages for the wrongful act of

* Professor of Law, Boston University Law School. Editor: on Torts."

"Cases

1 Burroughes v. Bayne, 5 H. & N. 296 (Eng.), LEADING ILLUSTRATIVE CASES.

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taking. As stated by Coleridge, J., in Mennie v. Blake, "The whole proceeding of replevin, at common law, is distinguished from that in trespass in this, among other things, that, while the latter is intended to procure a compensation in damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure the restitution of the goods themselves; and this it effects by a preliminary ex parte (that is, at the complaint of one party) interference by the officer of the law with the possession. This being done, the action of replevin, apart from the replevin itself, is again distinguished from trespass by this, that, at the time of declaring, the supposed wrongful possession has been put an end to, and the litigation proceeds for the purpose of deciding whether he, who by supposition was originally possessed, and out of whose possession the goods were taken, and to whom they have been restored, ought to retain that possession, or whether it ought to be restored to the defendant."

At common law, both in replevin and in trespass, there must have been a wrongful taking, and if the taking of the goods was rightful, neither action would lie even though the defendant wrongfully detained the goods after his right to hold them had been determined. There was an exception to this rule, however, in replevin, in case of cattle taken, damage feasant (doing damage). And in modern

26 E. & B. 842 (Eng.).

3 Dame v. Dame, 43 N. H. 37; Mennie v. Blake, 6 E. & B. 842 (Eng.). 43 Blackstone, Commentaries, p. 151 (2 Cooley, 4th ed., p. 967).

times, generally by statutory modification, replevin will lie, whether the original taking was rightful or not, that is to say, this action will lie either upon a wrongful taking, or upon a rightful taking, as by a loan, and a subsequent wrongful detention. Trespass, however, will lie only where there is an unlawful taking or disturbance, or interruption, of the plaintiff's possession, actual or constructive."

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3. Detinue. The action of detinue lay to recover goods, together with damages for detaining them, where the original taking was rightful. This action has generally fallen into disuse, not only because the method of trial, at common law, was unfavorable to the plaintiff, but also because the plaintiff can better accomplish his object, whether it be to recover the goods specifically, or the value of them, by the action of replevin or by that of trover.s

Of these four actions, replevin, trespass and detinue are of the oldest,-these actions being in use prior to the Statute 13 Edward I, Ch. 24 (1285), known as the Statute of Westminster II. Under the provisions of this statute grew up the action of trespass on the case, of which the action of trover is an offshoot.

4. Trover-History.-The action of trover, or,

5 Dame v. Dame, 43 N. H. 37, and cases cited. Baker v. Fales, 16 Mass. 147. Lord, J., in Whitman v. Merrill, 125 Mass. 127: "Replevin lies for an unlawful detention, although the original taking was lawful."

6 Fouldes v. Willoughby, 8 M. & W. 540 (Eng.), LEADING ILLUSTRATIVE CASES.

Dame v. Dame, 43 N. H. 37.

8 Burroughes v. Bayne, 5 H. & N. 296 (Eng.), LEADING ILLUSTRATIVE CASES. Bigelow, Torts (8th ed.) p. 391. 3 Blackstone, Commentaries, p. 152 (2 Cooley, 4th ed., p. 967, 968).

technically, trover for conversion, is an action to recover the value of personal property. The early forms of declarations in trover contain the allegation that the plaintiff had lost the goods and that the defendant had found them, and had refused, after a demand, to deliver them to the plaintiff, but had converted them to his own use." The action derives its name from this allegation of finding (trouver).10 Lord Mansfield, in the case of Cooper v. Chitty," speaking of the action of trover, says: "In form, it is a fiction; in substance a remedy to recover the value of personal chattels wrongfully converted by another to his own use. The form supposes the defendant may have come lawfully by the possession of the goods. This action lies, and has been brought in many cases, where, in truth, the defendant has got the possession lawfully. Where the defendant takes them wrongfully and by trespass, the plaintiff, if he thinks fit to bring this action, waives the trespass, and admits the possession to have been lawfully gotten. Hence, if the defendant delivers the thing upon demand, no damages can be recov?ered in this action for having taken it." 12 The meaning is that the early allegation of losing and finding, which has generally disappeared under modern pleading, 13 was considered a fiction and was not traversable; no issue could be raised upon it. "The

9 Shipman, Common Law Pleading, Appendix, 506.

10 Chitty, Pleading (9th Am. ed.), p. 145.

111 Burrows 20 (Eng.).

12 Cooper v. Chitty, 1 Burr. 20 (Eng.). Compare Royce v. Oakes, 20 R. I. 252, 38 Atl. 371.

13 See, however, Gaskill v. Barbour, 62 N. J. L. 530, 41 Atl. 700, and allegations of declaration, as stated in the opinion of the court.

whole tort," says Lord Mansfield, "consists in the wrongful conversion. Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action: First, property in the plaintiff; " and, secondly, a wrongful conversion by the defendant.'

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5. Conversion defined.-Before proceeding with the discussion of the elements of this action, it should be observed that the term "conversion" is misleading. It is a technical expression and as used in the law of torts, in respect to actions of trover, does not necessarily imply that the property has been changed in form. In fact, in probably a vast majority of cases of conversion, no change of the form, or destruction, of the property has taken place. The expression means that the defendant has exercised a wrongful dominion or control over the property in violation of the plaintiff's rights.15

6. Meaning of "converted to his own use."—It should be observed further that the expression "converted to his own use" is also a technical expression. It is quite immaterial whether or not the defendant's acts of dominion over the plaintiff's property are beneficial to the defendant. In McPheters v. Page, 16 the court stated the law, in this respect, as follows: "It is not necessary to a conversion that it be shown. that the wrongdoer has applied it (the property) to

14"Property'' here is used in a very general sense; as will be pointed out later, it is not necessary that the plaintiff be an owner of the property; bare possession or right of possession is sufficient as against a wrongdoer. 15 Burroughes v. Bayne, 5 H. & N. 296 (Eng.), LEADING ILLUSTRATIVE CASES.

16 83 Me. 234, 22 Atl. 101. Compare Bristol v. Burt, 7 Johns. 254 (N. Y.).