If, there is a direct act which causes damage to goods by seizure or removal to someone then it is called as trespass to goods. For example, removing a tyre from a motor car G.W.K. Ltd. v. Dunlop Rubber Co. Ltd., (1926) 42 ILR 376. Scratching the panel of a coach [Foulder v. Willoughby, (1841) 8 N&W 549.] destroying or injuring the goods, beating or killing the animals or infecting them with the desease1 or chasing the animals to make them run away from the possession of owner or killing a dog by giving it poisoned meat.2
For trespass to goods, it is essential that the injury and damage must be direct and not consequential. It is further required that the plaintiff must have the possession of goods either actual or constructive or a legal right to the immediate possession at the time of trespass. A trespass to goods is also actionable per se i.e., without any proof of actual damage.
Kirk v. Gregory, (1876) 1 Ex D 55.-in this case, on a person's death, his sister-in-law removed some jewellery from his dead body and kept it in another room with a reasonable belief that the jewellery will be more safe in another room since people will come to pay homage to deceased. But, it was her mistaken belief and the jewellery got stolen from that room. Sister-in-law was held liable for trespass to the jewellery. Earlier, it was not essential for the plaintiff to prove intention or negligence on the part of defendant in an action for trespass, but now in the light of recent cases of trespass to person, it appears that the plaintiff should prove intention or negligence of the defendant in respect of trespass to goods.
In this case, the defendants had employed certain independent contractors to make excavations on their land. Beneath the land the plaintiff's predecessor had laid some electric cables. The defendants had no knowledge about the underlying cables. In course of excavations, the cable got damaged. The defendants were not held liable for this damage as it was not known to them.
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1. Winfield, Law of Tort 10th Edn., p. 403.
2. Salmond, Law of Torts, 14th Edn., p. 138.
Ø Trespass is a wrong against possession rather than ownership.
Ø A person in possession can maintain an action though somebody else is the owner of that goods.
Ø A trespasser cannot by his trespass acquire the right of ownership in the goods. Such a possession does not stop owner from taking back the property from the trespasser. (Khan Mohammad v. State of Rajasthan, MANU/RH/0007/1967 : AIR 1967 Raj 37).
Ø A joint owner of the property can maintain an action of trespass against the co-owner if the latter has done something which amounts to his ouster. (Jacob v. Seward, 1872 LR 5 HL 464).
2.
While exercising a legal right or under legal process or in defence of person or property, trespass to goods can be justified. For example, a man can't be held liable if he interferes with another's chattels in defence of his son's livestock.
Examples
(a) If A's dog attacks B's sheep then B is justified in shooting the dog but the condition is that, the shooting should be reasonable and essential for the protection of livestock.
(b) If X leaves his vehicle on the road in a manner that it has blocked the passage then Y can remove the vehicle to facilitate his passage and in doing so, he would not be held liable for trespass.
3.
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. 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.
Damages-
In cases of trespass to goods, the damages in general are measured by the value of the goods or the amount of injury done to them. In Dajiba Anand Ray v. B.B. & E.I. Rly. Co., (1869) 6 BHC (ACJ) 235, the defendants without taking permission from the plaintiff started quarrying on the land of the plaintiff and removed a large quantity of the stones from there. On an action by the plaintiff, the Court held that the plaintiff was entitled to recover by way of damages, the value of the stones after it was quarried. At the sametime, the Court also held that the defendants were not entitled to get the labour cost which they incurred on quarrying the stones.
4.
Conversion is said to have been committed when there is wilful interference without lawful justification with other's property.
Salmond -
a conversion is an act of wilful interference, without lawful justification, with any chattel in a manner inconsistent with the right of another, whereby that other is deprived of the use and possession of it. We can say that intentional interference with another man's property is conversion. Even, if a person honestly believes that he is entitled to do so and interferes with the property of plaintiff, he is liable for conversion.
An act of conversion may be committed in following ways-
(i) when some property is taken by someone wrongfully.
(ii) property is wrongfully parted with.
(iii) wrongful sale of goods/property.
(iv) wrongful retention of goods.
(v) wrongful destruction of property.
(vi) when the lawful owner's right is denied.
Any person who without being authorised by the owner of the property takes possession of his goods with the intention of asserting suzerainty over them is liable of conversion.
For example -
to steal someone's goods is a conversion, but mere removal of the goods from one place to another will not be an assertion of rights adverse to the plaintiff's and it may not be conversion as it was held in the case. Foulder v. Willonghby, (1841) 8 M&W 540.
In another case Roop Lal v. Union of India, (1841) 8 M&W 540, the military jawans saw some woods lying near the bank of a river and thought that it belonged to no one and is a property of government. They took the same for campfire and used it as fuel.
The plaintiff brought the suit for the tort of conversion. It was held that the defendants were liable even if the military jawans did not intend to commit theft or believed it honestly that the wood belonged to the government.
If, someone (A) was entrusted with the duty to look after the goods of B but, if A puts it in someone else (C) hands then it is contrary to what A has been entrusted with. The mistake has been committed as soon as some rights over property have been given along with the possession. In Dhyan Singh Sobha Singh v. Union of India, MANU/SC/0010/1957 : AIR 1958 SC 274: (1958) 1 SCR 781, it was observed that every person is guilty of a conversion, who without lawful justification deprives a person of his goods by delivering them to someone else so as to change the possession.
If, a person innocently obtains possession of the goods of a person who has been fraudulently deprived of them and disposes them of whether for his own benefit or that of any other person, is guilty of conversion as it was observed in the case of Hollins v. Fowler, 1875 LR 7 HL 757 (795): 44 LJ QB 169. In
R.H. Wills & Son v. British Car Auctions, (1978) 2 All ER 392, Lord Denning said-"when the goods are sold by the intervention of an auctioneer under the hammer or as a result of a provisional bid, then if the seller has no title, the auctioneer is liable in conversion to the owner."
If, a man is in possession of another's chattel and refuses to hand it over to its real owner, then it is an assertion of a right inconsistent with his general dominion over it; and the use which at all times, and in all places he is entitled to make of it, and consequently amounts to an act of conversion.
If the goods of an owner are in possession of someone else then he should send someone to demand and receive them and if the demand of his or his agent is not met by the possessor this is the evidence of conversion. In Wilton v. Girdlestone, (1822) 5 B&Ald 847, it was said that a demand and refusal do not in themselves constitute a conversion, but they are evidence of a prior conversion.
As per observation given in Alexander v. Southey, an unqualified refusal is always conclusive evidence of a conversion, but a qualified, reasonable and justifiable refusal is not.
A person who without any justified reason wilfully consumes or destroys a chattel belonging to another person and some article loses its shape or identity, it amounts to destruction. For example, eggs are destroyed when an omelette is made; cotton is destroyed when yarn is made and corn is destroyed when it is ground into flour. In the case Richardson v. Atkinson, (1723) 1 Sir 576, the defendant took some wine out of the plaintiff's cask and mixed water to compensate the taken wine from the cask. The court held the defendant liable for conversion of the whole cask as he converted part of the contents by taking them away and the remaining part by destroying their identity.
Earlier, it was said that the conversion of goods may happen even though the defendant has never been in physical possession of them, if his act amounts to an absolute denial and repudiation of the plaintiff's right.
It was overruled by section 11(3) of the Torts (Interference with Goods) Act, 1977 which provides that denial of title is not itself a conversion.
In Akola Electric Supply Co. Ltd. v. Gulabi, ILR 1950 Nag 453, interference with a chattel in a manner inconsistent with the right of the owner accompanied by a denial of title of the owner amounts to conversion.
Jus Tertii is a defence to an action for conversion. It may be the defendant's plea that some third party has superior title to that of plaintiff. But, this defence has got some limitations as-
(i) where the plaintiff was in possession of the goods at the time of conversion, the defendant cannot plead jus tertii; Armory v. Delamirie, (1722) 1 Stir 505.
(ii) where the plaintiff was not having the possession of goods at the time of conversion in actual terms, but only a right to possess, in such a case the defendant can take the plea of jus tertii; Leake v. Loveday, (1842) 4 M&G 972.
(iii) a bailee is estopped from setting up the title of an owner who has not given him authority to make the claim on his behalf; Rogers v. Lambert, (1891) 1 QB 318.
6.
Where the defendant is in possession of goods during trial, there is a further remedy by way of an order for redelivery. There are two remedies-
(i) Damages; and
(ii) Re-delivery
Damages depend on types of injury. If injury is simple, the damage will be nominal but if it is substantial the damages will be assessed according to the value of torts. If some chattels or goods are destroyed, the damages will be assessed upon the basis of full value. Ash v. Duke, (1936) 2 All ER 71. It would not be out of place to mention here that if the plaintiff has recovered the value, his title to the goods becomes extinguished.
The damages done to goods are measured on marked value at the time of conversion provided no special damage has been sustained and the goods are received back after action; Mohammad Mohsin Khan v. Turab Ali Khan, (1909) 6 ALIR 441.
In Williams v. Arthur, (1847) 5 QB 320, it was held that the articles or goods have been returned, but have fallen in price, the defendant has to pay damages on the basis of difference in the price at the time of demand by the plaintiff and the time of return.
After abolition of detinue, Tort (Interference with Goods) Act, 1977 came into being, but the rights of the plaintiff remained the same. The Court may order at its descrition as-
(a) for delivery of the goods together with payment of any consequential damages, or
(b) an order for the delivery of the goods, but with an alternative option to the defendant to pay the value of the goods together with payment of consequential damages, or
(c) an order for damages alone.
7.
|
Trespass |
Conversion |
1. It is a wrong to the actual possessor hence cannot be committed by a person in possession. 2. Trespass is to damage the other's chattel or goods, but without intending to exercise an adverse possession over it. 3. The gist of the action in trespass is the force and direct injury inflicted. |
1. It is a wrong to the person entitled to immediate possession. 2. It is a breach made adversely in the continuity of the owner's dominion over his goods though the goods may not be hurt. 3. Here, in conversion it is the deprivation of the goods or their use. |
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