“TORTS OF DETINUE”

TITLED- LAW OF TORTS

Submitted by: Submitted to:

AMISHA PRAKASH Sushmita Singh

ROLL NO: 2005(1​ST​ YEAR)

B.B.A .LL.B,CNLU, PATNA

Academic session-2018-2023

​ CHANAKYA NATIONAL LAW UNIVERSITY,NYAYA

NAGAR, Mithapur,Patna 800001

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 ​ACKNOWLEDGEMENT

It is my privilege to record my deep sense to perform gratitude to those who helped me in

completion of this project.

In making of this project many people helped me immensely directly or indirectly. I

sincerely acknowledge the help rendered to by our faculty MS SUSHMITA SINGH who had
given me an idea and encouragement in making this project. I also acknowledge the help of
library and my staff and my friends for being cordial in order to make conductive environment of
the CNLU hostel.

AMISHA PRAKASH

1​ST​ SEMESTER

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DECLARATION OF THE CANDIDATE

I hereby declare that the work report in the B.B.A LLB (Hons.) Project report entitled “TORT
OF DETINUE” submitted at CHANAKYA NATIONAL LAW UNIVERSITY is an authentic
record of my work carried out under supervision of MS SUSMITA SINGH. I have not submitted
this work elsewhere for any other degree or diploma . I am fully responsible for my project
report.

SIGNATURE OF THE CANDIDATE

NAME OF THE CANDIDATE ; AMISHA PRAKASH

CHANAKYA NATIONAL LAW UNIVERSITY ,PATNA

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.

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RESEARCH QUESTONS

What is tort of detenue ?

what is the history of the distinction between trespass, detenue and trove?

What is the procedure for bringing a detenue action?

What are the defences to an action for detenue?

Who can sue for detenue

​HYPOTHESIS
Detention is the adverse withholding of the goods of another. The remedy in English law is an
action in detenue . It lies for the specific recovery of chattels wrongfully detained from the
person entitled to the possession of them, and also for the damages occasioned by the wrongful
detainer. The detention necessary is an adverse or wrongful detention by the party sued, or by his
servent or agents​.

RESEARCH METHODOLOGY

Mostly doctrine sources and primary method of research was adopted in the making of this
project.

Few primary and secondary methods were used. Some literary works and books and articles
were referred and the interent through various websites were use extensively for the
collection of data which was required for the study needed for this research.

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Table of Contents
LAW OF TORTS 2
1. INTRODUCTION 3
2. Definition of Detinue: 4
2.1. The following is an example of a state statute dealing with detinue: 5
3. Elements of Detinue: 6
4. Conversion: 8
5. Wrongful intention not necessary 10
6. Differences Between Conversion and Detinue 10
7. Trespass to Goods 11
7.1 FORMS OF TRESPASS 12
8. MEASURE OF TRESSPASS OF GOODS 14
8.1 Differences between Conversion and trespass to goods: 14
9 RESIDUAL TORTS 15
10. Detinue abolished in England 15
10.1 Positions in india 15

Introduction
Detention means detaining the goods or chattels of another person without any lawful
justification. This applies where there is wrongful detention of a chattel of another person
entitled to the possession of them. In detenue , the plaintiff must ordinarily prove that he has
right of immediate possession and a right of property in chattel and that the defendant detained
the chattel after the plaintiff demanded its return. Whenever detenue lies so does conversion, but
with the important exceptions that is no defence to detenue that the defendant has parted with the
possession before the demand ,or unless he proves that he was not negligent, that he had lost it.

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The action of detenue is based upon a wrongfuldetention of the plaintiff a chattel by the
defendant , evidence by a refusal to deliver it upon demand and the redress claimed is not
damages for the wrong but the return of the chattel or its value​.

LAW OF TORTS
Torts Tort is conduct that harms other people or their property. It is a private wrong against a
person for which the injured person may recover damages, i.e. monetary compensation. The
injured party may sue the wrongdoer (tortfeasor) to recover damages to compensate for the harm
or loss incurred. The conduct that is a tort may also be a crime. Some torts require intent before
there will be liability and some torts require no intent. In other words, in some cases, there is
liability for a tort even though the person committing the tort did not have any intent to do
wrong. Types of Torts There are basically three types of torts: intentional torts, torts based on
negligence and strict liability torts. An intentional tort is a civil wrong that occurs when the
wrongdoer engages in intentional conduct that results in damage to another. Striking another
person in a fight is an intentional act that would be the tort of battery. Striking a person
accidentally would not be an intentional tort since there was not intent to strike the person​. ​This
may, h​ owever, be a negligent act. Careless conduct that results in damage to another is
negligence. The intent element of these torts is satisfied when the tortfeasor acts with the desire
to bring about harmful consequences and is substantially certain that such consequences will
follow. Mere reckless behavior, sometimes called willful and wanton behavior, does not give rise
to the level of an intentional tort. If a person commits an intentional tort, this means that he
intentionally violated a legal duty he owed to the victim. This is different from a negligent tort,
in which the tortfeasor violated the duty that every member of society has to exercise reasonable
care in their actions with others. The distinction between an intentional tort and a negligent tort is
important for several reasons. First, if an individual wants to sue for an intentional tort, he must
prove that the tortfeasor acted with "intent." This is a separate legal requirement that the plaintiff
must fulfil, in addition to proving all the other facts of the case and proving actual damage. Strict

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liability, sometimes called absolute liability, is the legal responsibility for damage, or injury,
even if the person found strictly liable was not at fault or negligent – the injured party is not
required to prove fault – liability is strict. An example of strict liability is injury caused by wild
animals in the care of the tortfeasor; because the tortfeasor owns tigers, the tortfeasor is
responsible for any injury, without the need for the injured party to prove negligence.
Differences b​ etween Crimes and Torts A crime is a wrong arising from a violation of a public
duty. A tort is a wrong arising from the violation of a private duty. Again, however, a crime can
also constitute a tort. For example, assault is a tort, but it is also a crime. A person who is
assaulted may bring criminal charges against the assailant and may also sue the assailant for
damages under tort law. An employee’s theft of his employer’s property that was entrusted to the
employee constitutes the crime of embezzlement as well as the tort of conversion. The police
may prosecute a crime, and the offender is imprisoned, but this does not compensate the injured
party; to obtain compensation the injured party will need to bring a claim in tort law.

1. INTRODUCTION

This tort involves the wrongful detention of goods by the defendant; and this normally covers
two circumstances: first, where he is in possession of such goods and loses them, and secondly,
the refusal without justification to deliver the goods to the person so entitled.

Detinue often arises in situations where the defendant initially has possession over the goods but
subsequently refuses to return them to the rightful owner without any reasonable excuse or
justifiable reasons. Reasonableness is a question of fact and may depend on the time of the
demand, the expense and inconvenience of immediate compliance and whether the defendant has
sufficiently explained to the plaintiff the reasons for his temporary refusal.

Detention is the adverse withholding of the goods of another. The remedy English law is an
action in detinue. It lies for the specific recovery of chattel wrongfully detained from the person
entitled to the possession of them. and also for the damages occasioned by the wrongful detainer.
The injury complained of is not the taking, not the misuse and appropriation of the goods, but
only the detention . The plaintiff must, as in conversion, have a special and general property and
a right to immediate possession. The plaintiffs object is to recover the specific goads; they must
therefore be capable of identification. Definite, considered as a tort, does not substantially differ
from conversion by detention. But the conversion at common law only allowed damages.
Detinue stands abolished in Eng-land by the Torts (Interference with Goods) Act, 1977 which

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allows for conversion remedies that were available under common law for detinue. There is no
corresponding Act in India. Sections 7 and 8 of the Specific Relief Act. 1963 provide for the
recovery of specific movable property at the suit of a person entitled to immediate possession
generally when the defendant is an agent or a trustee for the plaintiff; compensation in money
would not afford adequate relief: and it would be extremely difficult to ascertain the damage
having regard to the special character of the chattel. Thus. these provisions contain reliefs which
can be obtained in an action for detinue.

The action for detinue is based upon a wrongful detention of the plaintiffs chattel by the
defendant, evidenced by a refusal to deliver it upon demand and the redress claimed is not
damages for the wrong but ​the return of the chattel or its value. So, if 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.

2. Definition of Detinue:

Detinue is similar to replevin in that it seeks a recovery of a specific item of property. However,
unlike replevin, which is based upon a wrongful taking of the property, detinue is based upon the
wrongful holding or retainer of the property. The defendant in detinue takes the property by
lawful means and the plaintiff need not ever have possessed the property to claim a right to the
property in detinue.

The property sought must be of a uniquely identifiable nature and no demand must be made upon
the defendant before the plaintiff brings a detinue action. The plaintiff may also seek damages
for the time the property was retained by the defendant.

Detinue is an action to recover the goods which has been wrongfully detained by the defendant.
The plaintiff can bring the action against the defendant who unlawfully detains the goods and
doesn't deliver the same on lawful demand. Detinue was abolished in England by the Torts
(Interference with Goods) Act, 1977, which allows for conversion remedies that were available
under common law for detinue. Under section 3 of the Act, provision has been given to recover
the damages by delivery of goods or payment of damages equivalent to the value of goods.

Similar Act in India is not available but under sections 7 and 8 of the Specific Relief Act, 1963
provision has been given to recover the specific movable property. Section 7 enables a person to
recover his property in a manner provided by Civil Procedure Code, 1908, and section 8 of the
Act provides speedier relief to the plaintiff in certain cases to recover the specific property from
the defendant.

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For example

(i)when the defendant is an agent or trustee for the plaintiff;

(ii)when compensation would not afford the plaintiff adequate relief;

(iii)when it is very difficult to ascertain the actual damage caused by its loss; and

(iv)when the possession of the thing has been wrongfully transferred.

2.1. The following is an example of a state statute dealing with detinue:

(a) When an action is commenced for the recovery of personal chattels in specie, if the plaintiff,
his agent, or attorney makes affidavit that the property sued for belongs to the plaintiff and
executes a bond in such sum and with such surety as may be approved by the clerk, with
condition that if the plaintiff fails in the action, he will pay the defendant all such costs and
damages as he may sustain by the wrongful complaint, it is the duty of the clerk to endorse on
the summons that the sheriff is required to take the property mentioned in the complaint into his
possession unless the defendant gives bond payable to the plaintiff, with sufficient surety, in
double the value of the property, with condition that if the defendant fails in the action he will,
within 30 days thereafter, deliver the property to the plaintiff and pay all costs and damages
which may accrue from the detention thereof.

(b) If the defendant neglects for five days to give such bond, the property sued for must be
delivered to the plaintiff on his giving bond, with sufficient surety, in double the value of the
property, payable to the defendant, with condition to deliver the property to the defendant within
30 days after judgment in case he fails in the action and to pay all damages for the detention of
the property and costs of the action. If the plaintiff fails to give such bond for five days after the
expiration of the time allowed the defendant, the property must be returned to the defendant.

3. Elements of Detinue:

● Demand & refusal

• The plaintiff must prove that the defendant kept the property after the plaintiff had
requested for its return. There must be a demand for the goods, and a subsequent refusal
on the defendant’s part.

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 • Detinue will not arise if there is no demand and refusal unless the parties have otherwise
agreed; for instance if there is an express stipulation that the goods must be returned at a
specific time, non-return will automatically give rise to detinue without any demand
being made.

• It should be noted that the law does not impose a duty on the defendant to return the
goods, but it is only when the plaintiff asks for it that the defendant should surrender the
goods to the plaintiff. The defendant may stipulate reasonable conditions before the
goods are returned by him. If these conditions are not met and he refuses to return the
goods, no action for detinue will lie.

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In the case of ​Nambiar v​ ​Chin Kim Fong- ​where the plaintiff’s insurance company instructed
for the plaintiff’s car to be sent to the defendant’s workshop for repairs. On July 27, 1961
the defendant informed the plaintiff that the repairs were completed and the car was ready
for delivery. On August 12 the plaintiff went to collect the car but the defendant refused
to release the car unless the plaintiff signed a certain document which the plaintiff was
under no duty to sign. At a later date, the plaintiff again demanded for the car and again
the defendant refused to release it for the same reason. The court held that since the
plaintiff was asked to sign what amounted to a release to his insurance company and the
defendant against any bad work, and added to that the repairs did not entirely satisfy the
plaintiff, the defendant’s request was unreasonable and constituted a detinue.

(b)​Immediate right to possess

The plaintiff must have an immediate right to possess the goods. In order to succeed in detinue it
is essential for the plaintiff to show that he has the right to immediate possession at the time of
commencing the action, arising out of an absolute or special property. In the case of ​Sajan Singh
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v ​Sardara Ali ​- where the plaintiff provided capital for the purchase of a lorry for the purposes
of business. The permit was obtained in the defendant’s name and in fact all documents were in
the defendant’s name. The plaintiff’s solicitor subsequently wrote a letter to the Road Transport
Department, explaining that since it was the plaintiff who drove the lorry and he was the one
who provided the capital, a permit should be issued under the plaintiff’s name. The defendant
found out about the plaintiff’s plans; he went to the plaintiff’s house and drove the lorry back to
his house. The plaintiff sued the defendant for detinue and asked for a declaration that the lorry
belonged to him. The Privy Council held that although the transaction between the plaintiff and
the defendant was illegal, nevertheless it was fully executed and carried out, and it was effective

1
• of ​Nambiar​ v ​Chin Kim Fong ​[1963] 29 MLJ 60.

2
​Sajan Singh ​v ​Sardara Ali ​[1960] 26 MLJ 52,

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to pass the property in the lorry to the plaintiff. He held the right to immediate possession and his
claim in detinue succeeded. It was further held that the plaintiff also had a clear case in trespass,
although it was not pleaded. The plaintiff could have relied in possession in fact, for for the
claim in trespass.
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​ im Kim Hock ​v ​Lee Ah Koong ​- where the defendant sold a taxi with its permit, which was
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in his name, to one Mr Tay. Mr Tay then defaulted in his payments and sold the taxi to the
plaintiff. The plaintiff was unaware that Mr Tay had defaulted in his payments. The defendant
later took possession of the taxi from the plaintiff. The court held that the plaintiff was a bona
fide purchaser and therefore had a good claim against the defendant. As the plaintiff was the
owner of the taxi, he had the right to immediate possession, and thus to the return of the taxi.
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● Abdul Muthalib bin Hassan ​v ​Maimoon bte Haji Abdul Wahid -​ where the plaintiff
operated a coffee-shop which was rented from the defendant. The defendant locked the
premises and the plaintiff claimed in trespass and for the return of his possessions which
remained in the shop and which were being withheld by the defendant. The court held
that the plaintiff had possession over the premises, and therefore the defendant had
committed trespass. Non-payment of rent is no justification for trespass, although it may
be taken into account in reducing the amount of damages. On the facts of the case, the
plaintiff was awarded nominal damages. The court further held that the remedy for
conversion and detinue in Malaysia is contained in sec 9 of the Specific Relief Act 1950,
but since the plaintiff did not specifically request for the return of his goods after the
premises had been locked up, there was no cause of action for either conversion or
detinue.

It is important to note that having the immediate right to possession entitles one to claim for any
wrongful detention of goods. It is not necessary the case that the person having the immediate
right to possess is also the owner of the goods. In some instances however, the right to claim for
detinue is limited to the owner of the goods. This must not be viewed as an exception, but is so
due to the nature of the goods itself. In case of ​Goh Hock Guan & Associates v​ ​Kanzen Bhd-
where the court held that the plaintiff firm could not claim for the wrongful retention of the
international passport of one of its representatives by the defendant. No one, according to the
court, had a right to claim for wrongful retention of the passport except the owner. This was
because the passport belonged to Goh as his property and only he is entitled to sue on his own
behalf.
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In ​Chep v Bunnings , the plaintiffs (“​Chep​”) hired out pallets under a system whereby a hirer
would take a quantity of Chep branded pallets on hire ,use them, and either return the same

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​Lim Kim Hock ​v ​Lee Ah Koong ​[1981] 2 MLJ 206
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​Abdul Muthalib bin Hassan v​ ​Maimoon bte Haji Abdul Wahid [​ 1992] 1 CLJ 88-
5
​Chep v Bunnings [​ 2010] NSWSC 301 (7 May 2010

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quantity (not necessarily the same pallets) to Chep, orpass them onto another hirer who would
accept responsibility for hire fees. Where hirers delivered goods on Chep pallets to non-hirers,
hirers remained liable for hire fees. Despite being a non-hirer, Bunnings was in possession of
Chep pallets for several years up until October 2007. It would receive goods from suppliers on
Chep pallets, and unload thegoods, or sell/store goods on the pallets. Where Bunnings retained
possession of pallets, thesupplier would:

• exchange them with an equivalent number of empty Chep pallets; or

take an “IOU” for the number of pallets (although none were in evidence).

Bunnings claimed the Chep pallets were the subject of hire contracts between Chep andsuppliers,
and if it paid hire fees, Chep would be “double dipping”.Since about 2002, Chep alleged
Bunnings held more pallets than could be accounted for by

IOUs. In May 2007, Chep demanded the return of pallets. Court orders were made in

August 2007 requiring the return of pallets. Bunnings returned pallets in October 2007. Chep
claimed in conversion and detinue in relation to 64,690 pallets returned in October 2007, and
lesser numbers held in previous years. Chep had to show it had an immediate right of possession.
Bunnings argued it obtained the pallets from sources with a right to possession (the hirers). To
succeed in this defence of ​jus tertii,​ Bunnings had to show it had a better right to possession than
Chep. Clause 4(d) of the hire contract gave Chep a right of immediate possession of all
pallets.McDougall J held that the hire contract was terminable at the will of Chep.

4. Conversion:
• Conversion is the tort committed by a person who deals with chattels not belonging to
him in a manner which is inconsistent with the rights of the lawful owner, by which the
latter is deprived of the use and possession of the chattel.

• It is the wrong done by an unauthorized act which deprives another of his property
permanently or for an indefinite time.

• A person, who treats goods as if they were his when they are not, is liable to be sued
in conversion.

Acts of conversion (How conversion commits?)

• When the property is wrongfully taken.

• When the property is wrongfully taken.

• When it is wrongfully parted with.

• When it is wrongfully sold.

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 • When it is wrongfully retained.

• When there is a denial of the lawful owner’s right.

• Conversion by denial of rights.

• Conversion by delivery.

• When the property is wrongfully taken: Conversion may be committed by wrongfully a

chattel out of the possession of another.
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Mills vs. Broker

Where a person lopped the branches of fruit trees over hanging his land and appropriated the
fruit it was held that, as the right to pick and appropriate the fruit, he was guilty of
conversion and liable to the owner for its value.

• Conversion by parting with goods: ​If a man, who entrusted with the goods of another,
put them into the hands of a third person contrary to orders, it is a conversion.

E.g.​ you took a book from me, but you gave it to another without returning the

Book.

Locschman vs. Machin

“The hirer of a piano, who sends it to an auctioneer to be sold, is guilty of conversion, and
so is the auctioneer who refuses to deliver it up unless the expenses incurred be first
pai​d

• Conversion by sell:​ ​: ​Wrongfully sale of goods is conversion. Any person who however
so innocently obtains possession of the goods of a person who has been fraudulently
deprived of them and disposes of them whether for his own benefit or that of any other
pers​.

• Conversion by keeping: ​Where a man has possession of another’s chattel and refuses to
deliver it. This is an assertion of a right inconsistent with his general dominion over it. It
amounts to an act of conversion on is guilty of conversion.

• Conversion by destruction: ​An unauthorized destruction of the plaintiff’s goods

constitutes conversion. It amounts to an adverse exercise of dominion.

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• ​Mills vs. Broker (1919)

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 7
Phillpot vs. Kelly (1835)

Taking wine from a cask and filling it with water is a conversion of the whole liquor.

• 6. Conversion by denial of rights

• 7. Conversion by delivery: ​If the defendant delivery the goods of the plaintiff to a third
person without the plaintiffs authority, he is guilty of conversion.

• 8. Conversion by detention: ​If the detention is adverse to the right of the person entitled
to possession.

5. Wrongful intention not necessary

A person dealing with the goods of another person in a wrongful way does so at his own peril
and it is no defence that he honestly believed that he , has a right to deal with the goods or he had
no knowledge of the owner's right in them. According to Lord Porter, "Conversion consists in an
act intentionally done inconsistent with the owner's right, though the doer ma, not know of, or
intend to challenge, the property or possession of the true owner.
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In Roop Lal v. Union of India,some military jawans found some firewood lying by the river
side. They thought that the wood being unmarked, probably belonged to the Government and
they had every right to take away the same. They took away the wood in the military vehicle for
camp fire and fuel. Ultimately, it turned out that the wood belonged to the plaintiff. In an action
against the Union of India for the tort of conversion committed by it servant, it was held that the
Union of India was liable to compensate plaintiff for the loss and the fact that the jawans did not
intend to commit theft did not absolve the State from its liability.

6. Differences Between Conversion and Detinue​:

Conversion is when one deals with a chattel in a manner repugnant to the immediate right of

possession of the true owner. Subjective intention to convert is unnecessary.

Detinue is the wrongful detention of goods, when one refuses to deliver up goods to a person

having the immediate right to possession. Often, there is a demand for return, and a refusal,

but that is not essential. Where the defence shows the defendant would have refused to

comply, then a formal demand would have been futile.

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​Phillpot vs. Kelly (1835) 3 A & E 106
8
​Roop Lal Makkar vs Union Of India And Ors. on 22 March, 1973

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 • The differences between ​detinue and conversion were laid down in ​PKNS v ​Teo Kai
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Huat Building Contractor - where a company, Pribumi Sdn Bhd was the main
contractor for the appellant, PKNS. The respondent was a subcontractor for Pribumi. The
appellant subsequently annulled its contract with Pribumi. Therefore the contract between
Pribumi and the respondent was annulled at the same time. The respondent claimed that
the appellant refused to allow them to bring out their machinery and equipment from the
building site for a period of one and a half years by which time the machinery could no
longer be used. The appellant contended that this was detinue whereas the respondent
claimed it was conversion. The court held that the claim was generally detinue. The
respondent was entitled to obtain damages, the value of the machinery and equipment at
the date of judgment. In the circumstances of the case the amount of damages was first,
the value of the machinery at the date of judgment, and added to that, a further sum
representing the fall in value for the period between the wrongful detention and the date
of judgment. Damages for loss of hire at the market rate was also recoverable.

7. Trespass to Goods
Trespass to goods, trespass de bonis asportatis, affords a remedy where there has been a direct
interference with goods in the claimant’s possession at the time of the trespass, whether that be
by taking the goods from him or damaging the goods without removing them. Trespass and
conversion deal with intentional interference with goods. Where goods are lost or damaged as a
result of the defendant’s breach of a duty of care, an action may lie in negligence.

An intentional or negligent interference with goods in the possession of the claimant is a trespass
provided that the interference is direct.

This tort protects several interests. First, it protects the claimant's interest in the retention of
possession of his goods (though the tort of conversion also protects this interest and is more often
relied on for this purpose.

Prof. Salmond​: “Trespass to goods consists in committing without lawful justification any act of
direct physical interference with a chattel in the possession of another person.”

Pollock: ​“Trespass to goods may be committed by taking possession of them or by any other act
in itself immediately injurious to the goods in respect of the possessor’s interest as by killing,
beating or chasing animals, or defacing a work of art.”

Two forms – it may assume:

9
​PKNS​ v ​Teo Kai Huat Building Contractor ​[1982] MLJ 165, FC-

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a. Taking the thing away from the plaintiffs possession, when it is termed aspiration (removal,
seizure etc.)

i. this would amount a crime of theft

ii. To robbery if it was also forcible.

b. Different application of force- damage

i. killing or injuring of an animal

7.1 FORMS OF TRESPASS

It follows that trespass to goods assumes various forms.

● Taking goods out of the possession of another,

● moving them from one place to another,
● or even bringing one's person into contact with them,
● or directing a missile at them have all been held to be trespass.

(B) CHARACTER OF THE ACT OF THE DEFENDANT

​There cannot be a trespass if the interference is indirect.

In order to decide whether a mere touching of goods is a trespass one must ask whether trespass
to goods is actionable per se:
10
A dictum of Lord Blanesburgh in William Leitch v Leydon is often cited to support the view
that it is always actionable per se.
Some, on the other hand, state that there is clear authority for the proposition that trespass is
actionable per se, but only where there is a dispossession of the claimant. Yet in Kirk v
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Gregory , a woman, who moved rings belonging to a man who had just died from one room
in his house to another was held liable in nominal damages for this asportation, ie for
carrying away of the goods from one place to another.

10
in William Leitch v Leydon [1931] AC 90, 106
11
Kirk v Gregory (1876) 1 Ex D 55F,

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(C) STATE OF MIND OF THE DEFENDANT

The Court of Appeal held that a contractor whose servant, while excavating, damaged the cable
of the plaintiff and whose act was neither intentional nor negligent, was not liable in trespass to
goods. There is, then, no liability for an accidental trespass to goods.

(D​) ) THE INTEREST OF THE CLAIMANT

The claimant must be in possession of the goods at the time of the interference. Possession
connotes both the power (factum) of exercising physical control and the intention (animus) to
exercise such control on his own behalf. Whether the claimant is owner is immaterial. Lord
Esher has said: 'The plaintiff in an action of trespass must at the time of the trespass have the
present possession of the goods, either actual or constructive, or a legal right to the immediate
possession.

There are three apparent exceptions to the rule that possession is essential:
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(1) In White v Morris (1852) , it was held that, where goods were assigned as security for a
loan upon trust to permit the assignor to remain in possession until default in repayment, the
assignee could sue in trespass while the goods were still in the assignor's possession.

(2) The title of executors or administrators relates back to the death of deceased, and this entitles
them to sue for a trespass committed between the date of the death and that of the grant . (Tharpe
13
v Stallwood (1843) .

(3) The owner of a franchise in wrecks has been deemed to have constructive possession of a
wreck so as to enable him to sue in trespass a person who seized a cask of whisky before he
could doso'Trespass to goods' is expressly included within the definition of a 'wrongful
interference with goods' in the Torts (Interference with Goods) Act 1977. Therefore the defence
of jus tertii is no longer available, and the statutory rules regarding co-ownership also apply, as
in an appropriate case are all forms of relief provided for by that Act.

8. MEASURE OF TRESSPASS OF GOODS

Where the claimant has been deprived of the goods, he is entitled to their value by way of
damages.

A claimant may recover general damages for loss of use of goods (as distinct from special
damages for loss of profits from the goods) although he would not have been using them during

12
In White v Morris (1852) 11 CB 1015
13
(Tharpe v Stallwood (1843) 5 Man & G 760).

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the period within which he has been deprived of their use (The Mediana [1900] AC 113, 117-8
14
per Earl of Halsbury LC).

The provisions of the 1977 Act relating to damages apply to actions for trespass to goods.

(2) TRESPASS AB INITIO

Where any person having by authority of law entered on land or seized goods, or arrested a
person, subsequently commits a trespass his original act will in certain circumstances be deemed
itself to be a trespass. The Distress for rent Act 1737, s19, abolished this rule in the case of
distress for rent.

This doctrine has little practical relevance today, but damages may be assessed on the basis that
the entire conduct of the defendant and not merely his subsequent wrongful act is tortuous.

A bailee disregarding the terms of his bailment may sometimes be liable in case, though not in
conversion and that to deny the claimant access to his goods or to interfere with his freedom of
using them is also actionable on the case. Further, to place baited traps on one's land near the
highway so as to attract dogs into the traps, and in consequence of which dogs are so trapped, is
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a tort of this category (Townsend v Wathen (1808) 9 East 277).

8.1 Differences between Conversion and trespass to goods​:

1) Trespass to goods means just interference with the possession not of ownership. A mere
taking or aspiration is actionable trespass but every aspiration is not trespass.

2) While trespass is an unlawful taking which may be for the sake of removing the property.
Conversion is an unlawful taking for the purpose of exercising adverse dominion over it.

3) Conversion is wider than trespass because in action for conversion the plaintiff need not prove
actual possession but can sue if he had an immediate right to possess. Trespass is a wrong to
possession.

4) Trespass cannot be committed by an actual possessor. But in actual possessor can be sued for
the conversion by the person who has the immediate right to possess.

5) In trespass the action is the force and direct injury inflicted. But in conversion it is the
deprivation of the goods or their use.

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(The Mediana [1900] AC 113, 117-8 per Earl of Halsbury LC).

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(Townsend v Wathen (1808) 9 East 277).

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9 RESIDUAL TORTS

There are many circumstances where the violation of interests in goods is not protected by
trespass, conversion or even the tort of negligence. The action analogous to the old action on the
case has proved very fruitful in filling these gaps; and what now follows is to be treated as
illustrative of this wider right of action and not as exhaustively defining the circumstances in
which it may be held available in the future. These torts are forms of 'wrongful interference with
goods' so that, where relevant, the provisions of the 1977 Act apply.

Trespass and conversion are especially restrictive in that they are not available to a claimant who
neither possesses nor has an immediate right to possess the goods. The leading case of Mears v
London and South Western Railway (1862) 11 CBNS 850, has firmly established that if goods
are destroyed or damaged, the owner may sue without having possession or an immediate right
to possess. The rule benefits, for example, a bailor, a purchaser where the vendor has a lien for
unpaid purchase money, and a mortgagee. He must prove damage to his interest - taking the
goods from the possessor without affecting title is insufficient.

A bailee disregarding the terms of his bailment may sometimes be liable in case, though not in
conversion and that to deny the claimant access to his goods or to interfere with his freedom of
using them is also actionable on the case. Further, to place baited traps on one's land near the
highway so as to attract dogs into the traps, and in consequence of which dogs are so trapped, is
a tort of this category.

10.Detinue abolished in England

'Detinue' abolished in England In England, by the passing of 'Torts (Interference with Goods)
Act, 1977, Detinue has been abolished.' However, the tort of conversion has been extended to
include those situations also which were termed as 'detinue'. Where the goods are wrongfully
detained by the defendant, the plaintiff can still claim relief by way of order for the delivery of
the goods or payment of damages, equivalent to the value of the goods and consequential
damages resulting from wrongful detention.

10.1 Positions in india

Position in India In India, although 'Detinue' as such has not been mentioned as a j but similar
action for recovery of specific movable property has been recognize by the Specific Relief Act,
1963. The courts sometimes term such an action that for 'detinue'.' Sections 7 and 8 of the
Specific Relief Act enable the recovery of specifc movable property. Section 7 enables a person

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entitled to the possession of the property to recover it in a manner provided by the Code of Civil
Procedure, 1908. However, in cases, provided in Section 8, the plaintiff entitled to the immediate
possession of the goods may claim a speedier relief and recover the specific movable property
from the person who is in possession or control of the thing. The cases when such relief is
possible are as follows : (a) When the thing claimed is held by the defendant as the agent or
trustee for the plaintiff;

(a) When compensation in money would not afford the

plaintiff adequate relief for the loss of the thing clamied. For
instance, Z has got possession of an idol belonging to A’s family,
and of which A is the proper custodian. A may be compelled to
deliver the idol to A.

(b) when it would be extremely difficult to ascertain the actual damage

caused by its loss. For instance, A is entitled to a picture by a dead
printer and a pair of rare China vases. B has possession of them. The
articles are of too special a character to bear an ascertainable market
value. B may be compelled to deliver them to A.

(c) When the possession of the thing claimed has been wrongfully
transferred from the plaintiff.

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In Banshi v. Goverdhan, the defendant having taken a cycle on hire from the plaintiff failed to
return the same. He was held liable to pay to the plaintiff the estimated value of the cycle, i.e.,
Rs. 300, under an action for detinue.

BIBILOGRAPHY

The following sources were consulted by the researcher to complete this rough proposal;

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​Banshi v. Goverdhan​ AIR 1976 MP 125

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 ● Law of torts . written y Dr. R.K. Bangia, revised by Dr. Narender kumar

● Law of torts written by Justice GP SNGH

● Law of torts written by S.A Pilalai

WEBSITES;

● https://www.abellawfirm.com/articles/elements-of-a-tort/

● https://www.lawteacher.net/lecture-notes/interference-with-goods.php

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