Distinction between two kinds of bailment where goods have been parted with. It has been already pointed out that there cannot be a conversion by mere demand and refusal unless at the time of the demand the defendant had it in his power to return the property (a). If, however, a bailee unlawfully or negligently loses or parts with possession he cannot get rid of his contractual liability to restore the bailor's property on the termination of the bailment, and if he fails to do so he may be sued in detinue (b). But this rule does not always seem to apply in the case of a defendant who is a mere stranger. It was very early said (c) that "if a man comes into possession by a bailment then he is answerable by virtue of the bailment, and if he bails the goods over, or they are taken from his possession, still he is answerable to the bailor by virtue of the bailment. But otherwise, if a man comes by goods by finding, for he is only answerable by reason of his possession, and if, without wrongful act (loialment), he is out of possession before he who has the right has brought his action, he is not answerable" (d). In accordance with this principle, it was held in Crossfield v. Such (e), that an administratrix could not recover in detinue against a defendant who had taken possession of certain property of the intestate on her decease and parted with it before administration was granted. In Wilkinson v. Verity (f), the plaintiffs' predecessors in title had bailed certain goods to the defendant, who wrongfully sold them. More than six years later the plaintiffs demanded the property back, and not obtaining it, brought an action of detinue. The Statute of Limitations being pleaded, it was held that a fresh cause of action had arisen on the refusal to deliver. "But," said the Court (g) "where the action of detinue is founded upon a wrongful conversion of the property only, as it needs must where there is a bare taking and withholding of the property of another without any circumstances to show a trust for the owner, or to found an option to sue either for the wrong or the breach of the original terms, the statute would run from the time at which the property was first wrongfully dealt with." It therefore appears (a) that detinue, considered as a tort, does not substantially differ from conversion by detention. It was originally a convenient form of action, because counts in detinue might be joined with counts in contract. This advantage ceased to be peculiar when the Common Law Procedure Act of 1852 gave a very general liberty of joining different causes of action (b). By the Common Law Procedure Act of 1854 (c) the Courts acquired, for the first time, a right in actions of detinue to issue a writ ordering the return of the chattel detained, without giving the option of retaining it on payment of the value assessed. But now in all cases there is jurisdiction to order the specific restoration of property wherever special reasons exist which make damages an inadequate remedy (d); and in event of the defendant refusing to obey the orders of the Court (including a County Court) his person may be attached for the contempt (e). Detinue as a tort merely one form of conversion. Replevin is a summary process by which a man out of whose Replevin. possession goods have been taken may obtain their return until the right to the goods can be determined by a Court of law. The procedure is now regulated by statute (f). The plaintiff goes before a county court registrar (g) and either deposits a sum as security or enters into a bond with securities conditioned to (a) In Goodman v. Boycott, (1862) 2 B. & S. 1, the plaintiff sued in detinue for title deeds. The defendant pleaded that one Goodman deceased had deposited the deeds with him, that he had lost them in Goodman's lifetime, that the plaintiff's only title to them was as devisee of Goodman, and that the detention sued on was the loss in Goodman's life. Wightman, J., held the plea bad; Blackburn, J., held it good. Lord Blackburn's view turned on a mere question of pleading, and, according to Wilkinson v. Verity, it would seem that his difficulty would have been got rid of if the plaintiff had new assigned and alleged as the detention sued on a demand by him and a refusal by the defendant, or, according to Bristol and West of England Bank v. Midland R. Co., (1891) 2 Q. B. p. 661, if the vendor to the plaintiff had been co plaintiff. In the latter case the decision For statutory right of a mortgagor to (b) 15 & 16 Vict. c. 76, s. 41. (d) See Pusey v. Pusey, (1684) 2 (e) Hymas v. Ogden, (1905) 1 K. B. 246, C. A. (f) 51 & 52 Vict. c. 43, ss. 134-137. (g) As to the responsibility of registrars in taking the bond, see Young v. Brompton Waterworks Co., (1861) 1 B. & S. 675. Replevin only in case of trespass. commence an action of replevin within a week, to prosecute it with effect (a) without delay, and to make return of the goods if return thereof shall be awarded. If he succeed in his action he may recover in respect of any special damage sustained and also the value of the goods if, in fact, they have not been redelivered (b) to him under the process of the county court. He may also recover the expenses of the replevin bond and any special damage which he has sustained by the wrongful taking (c). In Smith v. Enright (d) it was held that such special damage may include annoyance and injury to credit and reputation in trade (e). If the defendant succeeds he is, at common law, entitled only to a judgment for the return of the goods (f). Under certain statutes now repealed the defendant was entitled to recover any special damage which he had suffered. It appears that in spite of the repeal such damage is still recoverable (g). The defendant has also the remedy on the replevin bond for a breach of any of its conditions. Replevin can only be brought when there has been a taking by trespass, whether under colour of some legal process or otherwise (h). In Mennie v. Blake (i) the plaintiff had lent a cart and horse to one Facey, who handed them over to the defendant in satisfaction of a debt. The plaintiff proceeded by replevin, but it was held that the action was not maintainable, because the possession of the defendant was peaceable (k). If, however, a distrainor before impounding refuses a due tender, the owner may still replevy, because, it is said, the (a) Ie., to a not unsuccessful termination (Tummons v. Ogle, (1856) 6 E. & B. 571). (b) An action, it would seem, lies if the person who has taken the goods disposes of them with notice of the replevin proceedings (Mounsey v. Dawson, (1837) 6 A. & E. 752). (c) Gibbs v. Cruikshank, (1873) L. R. 8 C. P. 454. (d) (1893) 69 L. T. N. S. 724. (e) But that case appears to be opposed to Dixon v. Calcraft, (1892) 1 Q. B. pp. 464, 466, as to which see above, p. 137. (f) Gotobed v. Wool, (1817) 6 M. & S. 128. (g) Smith v. Enright, (1893) W. N. 173; and see Mayne on Damages, 7th ed. p. 453. (h) Shannon v. Shannon, (1804) 1 Sch. & Lef. 324; Galloway v. Bird, (1827) 4 Bing. 299. (i) (1856) 6 E. & B. 842. (k) The Court seems to have been of opinion that the possession of the defendant was not only peaceable but lawful until the plaintiff should demand the property back. It would seem, however, that the taking was an act of conversion (see above, p. 232) though doubtless no trespass. subsequent detention is equivalent to a fresh taking. The reason given is of doubtful validity (a). The ordinary use of replevin is When it lies. in cases of distress for rent or distress damage feasant. It has, however, been frequently employed by parties complaining of a seizure of their goods under process of an inferior Court issued without jurisdiction (b); and in this way questions of rating liability have, on more than one occasion, been brought to the test (c). But there can be no replevin against an execution of a superior When not. Court (d), nor against a revenue seizure or distress for any Crown due (e). In Mellor v. Leather (ƒ) the plaintiff's property had been seized by a constable on information that the plaintiff had stolen it. It was held that, assuming the seizure to be unlawful, an action of replevin was maintainable, although an unusual form of remedy in such a case. An action can be brought for the taking or conversion of any corporeal personal property (g), including papers and title deeds (h). It is sometimes said that current coin of the realm is an exception to this rule, and money, unless "in a bag," cannot be sued for in an action of tort. This, however, is incorrect (i). Of course if a man simply receives a sum to be repaid on request the property in it passes, and his only liability is for the debt, but if the undertaking is that he should return or hand over the specific coins entrusted to him and he converts them to his own use an action of trover will lie (k). It is an à fortiori case if there has been an unauthorised taking out of the actual possession of the owner; but if the coins are paid (a) Erans v. Elliot, (1836) 5 A. & E. 142. See below, p. 288, note («). (b) Rex v. Burchett, (1722) 1 Str. 567; George v. Chambers, (1843) 11 M. & W. 149; Allen v. Sharp, (1848) 2 Ex. 352. (c) Governors of Bristol Poor v. Wait, (1834) 1 A. & E. 264; Mersey Docks & Harbour Board v. Cameron, (1864-5) 11 H. L. C. 443; Marshall v. Pitman, (1833) 9 Bing. 595; London & North Western R. Co. v. Buckmaster, (1874) L. R. 10 Q. B. 70. (d) Per Parke, B., George v. Cham bers, (1843) 11 M. & W. p. 160. (e) Rex v. Oliver, (1717) Bunbury, (g) Allen v. Sharp, (1848) 2 Ex. (h) Anon., (1828) 1 Moll. 390, but see (i) Hall v. Dean, (1600) Cro. Eliz. What kind of property can be sued for. Money. Negotiable instruments. Title deeds. Realty when severed. American over to an innocent third party, then the property is transferred and the money cannot be followed in his hands (a). Whenever the facts are such that a charge of larceny, whether by a taking or as bailee, could be supported, it would seem to follow that there is also a conversion (b). Negotiable instruments and other securities, such as guarantees and bonds, considered as corporeal property, are simply pieces of paper. Their sole value is as choses in action. If, however, they are unlawfully converted and detained, the person entitled may recover full damages to the extent of his loss (c). Although title deeds are not, properly speaking, chattels, it has always been held that they can be sued for in trover or detinue (d). It is said, however, that they cannot be replevied (e). If the plaintiff sues in trover, his damage is primâ facie the whole value of the estate to which they appertain (ƒ). If a portion of realty is severed and taken away the owner, instead of suing in respect of the injury to the realty, may elect to treat the severed portion as his chattel and sue for its conversion. In this way a remedy may be obtained for coal wrongfully worked, timber wrongfully cut, fixtures wrongfully removed (g). In certain American States it has been held, where the taking was wilful and tortious, that if subsequently to the conversion the nature of the chattel was altered (as, for example, if logs were sawn into boards, or growing wheat was harvested and threshed), the plaintiff was entitled to recover the value of the chattel in its new forms (h), but this principle finds no place in modern English law. But even tenant's fixtures, while they remain unsevered, are part of the realty, and therefore trover (a) Foster v. Green, (1862) 7 H. & N. 881. (b) See Reg. v. Hassall, (1861) 30 L. J. M. C. 175; Reg. v. Aden, (1873) 12 Cox 512; Reg. v. De Banks, (1884) 13 Q. B. D. 29. This last case seems open to some question. (c) Alsager v. Close, (1842) 10 M. & W. 576; Watson v. McLean, (1858) E. B. & E. 75; M'Leod v. M'Ghee, (1841) 2 M. & G. 326: Kleinwort, Sons & Co. v. Comptoir National d'Escompte, Paris, (1894) 2 Q. B. 157. But see Embericos v. Anglo-Austrian Bank, (1904) 2 K. B. 870. (d) Plant v. Cotterill, (1860) 5 H. & N. 430. (e) Vin. Ab. Replevin A. 9; Bacon's Abr. tit. Replevin F., but see Anon., (1828) 1 Moll. 390. (f) Per Alderson, B., Loosemore v. Radford, (1842) 9 M. & W. p. 659. (g) Wood v. Morewood, (1841) 3 Q. B. 440, note; Berry v. Heard, (1637) Cro. Car. 242; Farrant v. Thompson, (1822) 5 B. & Ald. 826. (h) Sedgwick on Damages, 8th ed., vol. 2, s. 502. |