Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself (see replevin).
Trover actions frequently concerned the finding of lost property. It could also involve cargo on ships, such as those lost at sea and later found. Trover often involved cases in which the "most correct" owner could be determined. For instance, if an envelope of bank notes or currency were to be found, the the court would attempt to identify the true owner. Often this would prove to be impossible. In that case, the finder would be the next best owner and be considered the possessor. Trover cases have been described as "finders keepers, losers weepers" cases.
Trover damages came to be measured by the market value of the object, not necessarily its replacement cost if it were new. Sometimes, compensation for deprivation of use and compensation for other losses naturally and proximately caused by the wrongful taking could be added. Case law results are mixed. The plaintiff could also recover interest that would have been earned by the money value of the object and any expense (except attorney's fees) incurred in attempting to recover the object. If the taker sold the object for more than its market value, the plaintiff could receive the higher price. However, selling the chattel could change the action to that of a true conversion (law) which was a form of theft. If the taker had made improvements on the object (e.g., repainted it), the value of such improvements are not deducted from the plaintiff's recovery unless the taking was by mistake. Early trover cases involved the keeping or taking of a bailment by the bailee (the person charged to hold them with "ordinary care"). Others concerned the use of lost chattels found by another. Who was the real owner? Early on, there was difficulty in dealing with situations where chattels held by a bailee were used by a third party. Examples could be sheep, horses, farm goods, grains or other chattels left in the care of a person who was required to engender ordinary care. If negligence led to damages, an action could be had. A third person might use the chattel, returning it in a damaged condition. The early common law had some difficulty in dealing with this kind of situation. This led to expansions of actions in trover. Although actions in trover can be traced to the time of Bracton, and later Edward I of England, it became more clearly defined later during the reign of Henry VI of England, 1422-1461 and 1470-1471. Action in trover became a mature legal doctrine during the reign of Elizabeth I of England, 1558-1603.
Trover as an extension of detinue and trespass
Trespass and trover were both actions founded upon possession. For many centuries, they were alternative remedies for the wrongful taking of, or damage to chattels. There was a distinction between the actions. In the theory of trespass, the plaintiff remained the owner of the chattel, with the possession or property rights interrupted or interfered with. In this case, the plaintiff must accept the chattel back when it was tendered. Recovery was limited to any damage to the chattel, or from the interruption of property rights. The theory of trover was that the defendant, by "converting" the chattel to his own use, had appropriated the plaintiff's property, for which he was required to make compensation. The plaintiff was not required to accept the chattel when it was tendered back to him. he could recover damages for the full value of the chattel at the time and place of conversion. The effect was that the defendant was compelled to buy the chattel at a forced sale, carried out by means of an action in trover.
In the time of Bracton, despite the generality of the writ, the bailor of a chattel could only bring this action against the bailee of the chattel, or those who represent the bailee by testate or intestate succession. Only two actions were available. The plaintiff could claim, "I lost the goods and you found them."; or "I bailed the chattel to you." The first of these was called detinue sur trover This was the new found haliday of Littleton.
There is some evidence that the action had been used in the generation following Bracton during the reign of Edward I of England. In earlier times, the finder who did not take the witness of his neighbors that he had honestly found the chattel was at risk of an actio furti.
In those days, action in detinue sur trover could not lie against a third party. If a person bailed his chattels to another, and that bailee wrongfully gave, sold or bailed the chattles to a third party, the only action was against the original bailee. Liability to the third bailee was not transferable. In later times, lawyers would talk of trover and bailment. In 1292, there was a slight tendency to regard the detainer rather than the bailment as the gist of the action. where is was stated "it is not enough to say, 'you did not bail to me' [in defense], but one must add, 'and I do not detain it [use of the chattel] from you.'" But there are other later cases which show that it is impossible or at least extremely difficult for the bailor to fashion any count that will avail him against the third party. The third party was called the "third hand".
Sir William Holdsworth described trover as an extension of detinue, which enabled not only a bailor and a dispossessed owner, but also a third person, to whose use goods had been bailed, to get full recognition of their interests.
In colonial America, replevin was used more often than detinue. In England the scope of replevin was usually limited to action in distress (where a chattel had been taken by a person who intended to hold it as a bargaining chip to force some action by the true owner).
By the end of the seventeenth century, the great bulk of litigation in England was conducted through the various forms of action which had developed from trespass. This remained the case until the nineteenth century, when these kinds of forms of action were abolished in succession by statute. By 1875, all remaining forms had been replaced by a single form uniform writ whereby the plaintiff endorses the statement for a claim. By that time, the change was purely procedural, but it also freed the substantive law from the old medieval forms of action. It permitted the development of broad concepts, such as libility in tort which could never have come about when confined by the old forms of action, such as trover. This served to rationalize the law. Just as forms of assumpsit replaced debt, so in the seventeenth century trover replaced detinue.
In the reign of Edward IV of England, the question arose whether a charter relating to land could be recovered by detinue in view of the fact that it had no value.
Defects in detinue sur trover
During the fifteenth century the plea of "detinue sur trover" gave rise to a special form of action of detinue, which came to be dsitinguished from the action of trespass on the case and its companion, trespass on the case sur trover. After a time, the latter became known simply as "trover". Littleton called the plea "per inventionem, sur trover, a new found halliday." This remark by Littleton probably only applied to the simpler form of the new pleading, which made it unnecessary to allege by what means the chattel had come into the hands of the defedant. It was not really the novelty of the action, but the fact that it streamlined the old writs by-passing the details of possession by the bailee or finder of the chattel.
For a time during the fifteenth century, the common law courts seemed to draw a real distinction between the counts Detinue sur trover amd detinue sur bailment. A bailment occurs when there is an agreement for someone to transport or keep a chattel. The normal rule was that "ordinary" care was necessary to protect the chattel while it was in the custody of the bailee. The former was a wrongful detention and a tortious wrong. The latter a wrong based on the agreement between the parties.
Wager of lawWager of law was a possible defense, at least in certain cases of detinue sur trover. Wager of law was a complicated medieval legal procedure which was used when other forms of proof were lacking. It involved the bringing forth of witnesses who would swear under oath, to God that the facts alleged in the writ or bill of complaint were true. Lacking such witnesses, the action would fail. This was locked into the old methods of proof, which were in turn, tied to the old forms of action. The records show a certain hardening of the courts toward this defense in the mid-fourteenth century. Wager of law was not used in debt on a covenant. Wager of law was abolished by statute in 1833.
Damaged chattel returnedNo action could lay when a chattel was returned, but in a damaged condition. In 1478, Catesby said, "And in the same manner I deliver my robes to you to keep for me and you wear them so that they perish, I shall have an action of detinue for in these cases the property is not altered, and afterwards an action on the case and recover damages for the loss sustained by your using the clothes.
Destruction of the chattelIt was doubtful whether detinue lay where, after bailment, a third party had destroyed the chattel bailed. This could be encountered when ships were lost at sea, or chattels being moved by wagon were destroyed by acts of nature and the like. Other cases might involve the finding or bailment of clothing which were destroyed while in the possession of a bailee. The case of a horse bailed to a smith, who bailed it to another smith who damaged, or killed the horse was encountered with some frequency. Action could not lie against the first smith. Contrary opinion is found in a ruling by Stratham.
Trover as a branch of assumpsit
Trover has been described as an action in assumpsit which arose from the quare writs by adding the "cum" (Latin: "with") which, then could allege that the defendant undertook (assumpsit, "assumed the risk", or "assumed the duty"), to do something. Another clause which which followed some time later contained the allegation of trover, and deals with situations which involved neither bailment nor a trespassory taking. In Bracton's day the appeal of larceny could be changed into an action de re adirata by omitting the words of felony. By this means a chattel could be recovered against a finder. If the finder refused in court to restore the chattel as "adirata", the plaintiff could refile the claim ("claims afresh"), this time adding the word felony, indicating the action was for a real theft, and conversion.
Actions of this kind were common in the manorial courts, but an obscure note in a Year Book suggests that in 1294 detinue could be brought against a finder of a chattel. Cases of lost cattle had their own law, and never fit into the forms of trover. Detinue against the finder of a charter seems to have found its way into the common law by 1389.
Charters, like stray cattle, had their own law with peculiar features, and these actions dealt primarily with executors who witheld the heir's title deeds which came into the their hands (devenerunt ad manus) with the ancestor's chattels. In 1455 Littleton explained the "new found haliday" which consisted in counting upon the finding (invencio) instead of the traditional devenerunt.
The proccupation of detinue with the two special cases of stray cattle and lost title-deeds persisted, and the general problem of recovering chattels which had neither been stolen or bailed was only solved with a new form of writ. This was invented by adding a novel preamble to be inserted in the writ "ostensurus quare". This preamble alleged tha the plaintiff casually lost possession of the chattel, that the defendant had found it, refused to restore it and converted it to his own use. The full development of trover and conversion is seen by 1510. A discussion of more modern cases of a bailee (holder) in possession of a title-deed is found in Columbia Law Review.
In 1585, Edward Coke was reluctant to allow the principle of conversion to be extended so as to enable detinue to be largely superseded by trover on the case. Coke laid down the first principles applicable to conversion (law). He pointed out that the finder had acquired the goods which were in no danger of being lost, there was earlier authority for saying that an action for trespass could be sustained and that non-delivery constituted conversions. Consequently, the wrongful refusal to deliver on demand because evidence of a conversion, and this, after some vacillation is now the law. It was a rivalry between the various courts developing legal systems of the country which gave an impetus to the growth of the more modern remedies.
Trover became the accepted action for all wrongs to chattels. In the case of Cooper v. Chitty (see infra), Lord Mansfield said, "In form, trover is a fiction; in substance a remedy to recover the value of personal chattels wrongly converted by another to his own use. The form supposes a defendant may have come lawfully by the possession of the goods." The fiction was the allegation that the finding in trover was an accident. It was the plaintiff who wanted return of the chattel, which had been converted to the use of the defendant.
English case law in trover
Two sub-bailee cases (intermediate baillee)During the reign of Edward IV of England, there were two cases indicating that there was a remedy for damage done by an intermediate bailee (sub-balee). In 1473, the weight of opinion of the judges allowed an action for damages due to the use of a sub-bailee. In this case the plaintiff had made a bailment to the defendant to keep goods for him. The defendant's bailee had used and damaged them, This action was thought to be similar to trespass, since the bailees had no right to the use of the chattels, but it was not a trespass since there was no interference with the chattels while they were in the possession of the plaintiff. Nor was there detinue, since there was no lawful detention.
In 1479, the remedy was extended to cover the destruction of the chattel by the possessor. The court allowed the action arising out of a bailment of a box containing some silver fixtures. It was alleged that the box had been broken open and the silver converted. The plaintiff could not recover the thing bailed, because it was destroyed. This was the first known case in which the words, "converted to his own use" (Latin: "convert a son oeps") were used. Judge Brian said, and I take it for clear law that he could not have action on the case if he can recover the thing intself." Notice the similarity to the fact patterns seen in cases of "breaking the bail".
Statham, Accion sur le Cas, 1433This is a fragmentary case from Henry VI of England which indicates that there were sacks of flour left by the plaintiff to be stored and cared for by the defendant. The plaintiff had paid the defendant for this arrangement. The sacks of flour had been carried off by a third party. Counsel for the defense argued that action on the case did not lie, because detinue lay. Judge Prisot opined it was an action on the case. An action similar to trover was allowed.
Keilw. 160, pl.2 1510In 1510 the judges held that a bailee "had misdemeaned himself" where he had possession of a chattel and wrongfully sold the same to a stranger. An action on the case lay. Similar results are seen.
Year Book 7, Henry VI, M., f. 6, pl.9 1428
One of the difficulties in extending action on the case further than a supplementary remedy to detinue lay in the unwillingness of the judges before 1585 to uphold an action on a new writ where a remedy already existed, such as in detinue. In the fifteenth century some overlapping between the forms of debt, detinue, account and trespass had been recognized. Judge Paston said in 1428, that it was a bad argument that a writ of debt could not lie where trespass did; because for the same thing one may have a writ of account and a writ of debt.
Isaac v. Clark, 1614In the case Isaac v. Clark it was laid down that a bailor could not maintain trover or detinue where he had pledged the goods, because the wrong was an offense against the possession of the bailee.
Manders v. Williams,1849This principle of Isaac v. Clark (see immediately supra) was extended in Manders v. Williams where the court found that a bailee had a bailment for a period of time, and not merely at the will of the bailor. In other words, there had to be an agreement, similar to a contractual arrangement.
Mulgrave v. Ogden, 1591Case involved twenty barrels of butter found and taken into the custody of the defendant. Plaintiff alleged the defendant's negligence had left the butter in a ruined condition. The court found that the loss arising from the negligence of an accidental finder was not allowed to constitute a cause of action, for no law compelleth him that finds a thing to keep it safely; as if a man finds a garment and suffers it to be moth eaten. It would be otherwise if there had been a misuse.
Eason v. Newman, 1595In Eason v. Newman a finder of a chattel was held liable on the ground that he had wrongfully refused to return it to the true owner. There was some judicial opposition to this rulng. It was criticized and precedent was not followed.
Case of the Chancellor of Oxford, 1614In The Case of the Chancellor of Oxford, a wrongful refusal to return a chattel was found to be evidence of a conversion.
Holdsworth's Case, 1638In Holdsworth's Case an attempt to bring an action in trover for the wrongful detention of chattels by a bailee failed, because the action sounded in detinue and not trover.
Strafford v. Pell, 1650
In Strafford v. Pell a similar action in trover as in Holdsworth's Case failed against a carrier of chattels for this was a declaration of a trover, and "supposeth a losing of goods, where the carrier hath them by delivery." Neither of these actions had anything to differentiate them from the old action of detinue, because both were based on a nonfeasance, before the character of conversion had been adequately realized.
Sykes v. Walls, 1675In Sykes v. Walls a claim of wrongful detention by a bailee was upheld as a good claim on the ground that a refusal to deliver up constituted a "misfeasance". By this case, trover became virtually concurrent with detinue. When a chattel had been found, and there was a subsequent refusal to deliver it to the owner, it was taken as evidence that a conversion had occurred. Trover was a wrong against the right of possession and not against the possession itself, because possession was prima facie in the wrong-doer. Even when trover was allowed to overlap trespass and replevin, which were concerned with possession, it remained necessary to define conversion, and this extension did not really affect the definition. Conversion (law) became any act on the part of the defendant inconsistent with the plaintiff's right to possession. This right had parts: it had to 1.) absolute and 2.) immediate.
The medieval conception of wrongs to chattels was based upon a physical interference with possession. This was inherent in an age when keeping the peace was the primary concern of law, and a right of a third party was foreign to it. Originally, trover was based on an infringement of possession other than trespass. All that was necessary for the medieval judge to decide the case was to determine who had the better right to claim a chattel, not necessarily the best right.
Armory v. Delamirie, 1721Armory v. Delamirie is a case which is frequently cited in United States Tort Law texts as the primary illustration of action in trover. A chimney sweep found a jewel while cleaning a chimney. He took it to a jeweler for evaluation. The jeweler removed the stone from the setting, with the intention of selling it to a third party. The chimney sweep was entitled to recover damages from the loss of the jewel. The case illustrates several pertinent issues with trover. First, the chimney sweep was not the primary owner of the jewel. Since the original owner could not be identified, the chimney sweep was the best owner. He had superior rights to the stone over the jeweler. The actions of the jeweler constituted a conversion. The possession by the chimney sweep was prima facie proof of ownership. A similar result was seen in the 1856 case of Jeffries v. Great Western Ry.
Dockwray v. Dickinson, 1697
In Dockwray v. Dickinson it was held that where the facts indicated a conversion of a ship and cargo that the plaintiff was entitled to interest in one-sixteenth of the value of the property. It was noted that one partner could not bring an action in trover against another partner. The plaintiff was not entitled to damages for the whole ship and cargo which was converted, but only the percentage which he owned. This was one-sixteenth. Selling the ship and cargo was a different situation than one where the ship was converted and subsequently destroyed. If a joint owner of a cargo ship sell the ship and cargo with the consent of the other joint owners, there is a severance of tenancy, and upon delivery, a severance of property. The buyer may bring action in trover. Seldon v. Hickock If one of the partners forcibly takes the ship, and it is subsequently lost in a storm in the West Indies, it is considered a destruction of the ship. Action in trover can be allowed. Barnardiston v. Chapman
Blainfield v. March, 1702Blainfield v. March allowed a plea in defense to trover brought by an administrator based on his own possession, that there was a will and an executor, whose claim would take priority to that of an administrator.
Cooper v. Chitty, 1756
In this case, Lord Mansfield stated, "Two things are necessary to be proved to entitle the plaintiff to recover in this kind of action (trover): first the property (i.e. ownership) in the plaintiff; and secondly, a wrongful conversion by the defendant."
Richards v. Jenkins, 1886
"A bankrupt plaintiff may be met by the plea that his trustee in bankruptcy has a rea ltitle." Nevertheless, the right of a third party would not be a protection against an action for an interference with the actual possession, because this would be a trespass, and trover would be a substitute for trespass. The action decided the better claim to ownership, and not the final question of ownership. It was a decision of "immediate" ownership, and not final ownership.
Gordon v. Harper, 1796Judge Ashurst said that, "in order to maintain trover the plaintiff must have a right of property in the thing (ownership) and a right of possession, and unless both these rights concur, the action (of trover) will not lie." Trover was not a strictly proprietary remedy.
Bishop v. Viscountess Montague, 1601In the case of Bishop v. Viscountess Montague the opinion was offered that the plaintiff could elect between action in trover and action in trespass as a remedy for wrongful taking.
Kinaston v. Moore, 1627In this case, the judges allowed action to be brought in trover where there had been a wrongful taking of a chattel. "For the losing is but a surmise and not material, for the defendant may take it in the presence of the plaintiff." (Compare with the dictum of Lord Mansfield in Cooper v. Chitty, supra.) "Although he take it as a trespass yet the other may charge him in an action upon the case of trover." (The choice is left to the plaintiff to choose action in trover or action in trespass.)
Hodges v. Sampson, 1662In this case, it was said that action in trover was in the nature of a trespass and where goods were taken, it was in the election of the party (plaintiff) whether to bring action in trespass or trover. This rule was followed in a long line of cases into the nineteenth century.
Mires v. Solibay, 1677
The opinion in this case was that mere damage to a chattel was not a good claim in trover.
Bushel v. Miller, 1718
Asportation of the chattel (illegally transporting the chattel) which was followed by the loss of a chattel, was held not to support an action in trover.
Fouldes v. Willoughby, 1841
In the Georgia case of Berry v. Jackson, Recovery of property converted may be allowed in an action of trover where such is statutorily defined.
Mitchell v. Georgia & A. R. Co.In the case of Mitchell v. Georgia & A. R. Co. it was noted that where action in trover is allowed by statute, and defined by such, it necessarily includes all three actions of trover, detinue and replevin.
Abraham Lincoln's case of trover: Johnson v. Weedman, 1843
The 1843 Illinois case of Johnson v. Weedman was argued by a young Abraham Lincoln. The case was somewhat similar to the case of Fouldes v. Willoughby , which had been decided two years earlier. It may have been taken as precedent in this present case. (see supra). A horse had been left in bailment for proper care. The bailee who was in possession of the horse rode it for 15 miles. There was no demonstrable damage to the horse. Lincoln convinced the court that there could be no action for damages. There was not enough evidence for the bailee to be held liable for a conversion, or for an action in trover. There had been no significant invasion of the owner's rights. The Illinois court agreed, and Lincoln won the day.
Typical case patterns of conversion in modern quasi-trover
Zaslow v. Kroenert, California, 1946In the 1946 case of Zaslow v. Kroenert, the California Supreme Court decided the case of quasi-trover with the following facts. Plaintiff Zaslow and defendant Kroenert owned a house as tenants in common. A dispute arose over the ownership of the house. The defendant and her agent entered the house, and changed the locks. They placed Zaslow's property in storage. Zaslow was notified of the placement of his porperty in storage, and its location. Plaintiff Zaslow sued and prevailed in an action of conversion. The California Supreme Court ruled that merely placing furniture in storage was not a conversion. There was no evidence that any damage had occurred to the furniture in storage. The case was remanded to the trial court to determine damages caused by the ouster and trespass of the personal property.
Electric Power Co. v. Mayor of New York, 1899In the 1899 case of Electric Power Co. v. Mayor of New York, The same fact situation as in Zaslow v. Kroenert, supra, was encoutnered where the furniture was placed in a warehouse at a distance so the plaintiff was subject to substantial inconvenience and expense in recovering. This was ruled to be a conversion (law). The case was similar to an 1816 British case, Forsdick v. Collins.
Hicks Rubber Co. Distributors v. Stacy, 1939
In the 1939 Texas case, the court encountered the same facts as in Zaslow v. Kroenert, except the defendant stored the furniture in his own name with the intent to keep it for himself. This was ruled to be a conversion.
McCurdy v. Wallblom Furniture & Carpet Co., 1905
In the 1905 case of McCurdy v. Wallblom Furniture & Carpet Co., the Minnesota court encountered the same fact situation as in Zaslow v. Kroenert, except that while the furniture was in the warehouse, and before the plaintiff could remove it, it was destroyed by a fire. This was ruled to be a conversion.
Borg & Powers Furniture Co. v. Reiling, 1943In the 1943 Minnesota case of Borg & Powers Furniture Co. v. Reiling a fact pattern similar to Zaslow v. Kroenert was encountered, except the defendant did not notify the plaintiff. This was ruled to be a conversion. See also ''McGonicle v. Victor H. Belleisle Co.
Typical case patterns in quasi-trover are reviewed.