Torts affecting movable property are as follows :
(1) Trespass to goods:
Trespass to goods is an unlawful disturbance of the possession of the goods by seizure or removal or by a direct act causing damage to the goods (Crozer vs. Cundey). Trespass to goods is technically known as trespass de bonis.
Examples: Removing of tyre from a motor car or scratching the panel of a coach are the examples of trespass to goods. But it should be noted that the plaintiff must at the time of trespass have the present possession of the goods, either actual or constructive or a legal right to immediate possession (Johnson vs. Diprose) Trespass to goods may assume either of two forms:
(i) Taking the thing away from the plaintiff’s possessions.
(ii) Direct application on force i.e. killing or injuring an animal. It should be noted that damage is not essential.
Essentials:
The following are the essentials of torts of Trespass to goods.
(i) That, the plaintiff must show that he was in possession, actual or constructive, of the goods. It should be noted that is รก constructive possession of goods in all cases where there is a legal right to possess.
(ii) That the possession of the plaintiff has been wrongfully disturbed. The fact that the trespass was unintentional is no ground of defence.
It should be noted that a trespasser cannot be his trespass acquire the right of ownership in the property and such possession cannot deter the real owner from taking back the property from the trespasser (Khan Mohammed Vs. State of Rajasthan).
Who can sue
The following persons can sue for trespass to goods ?
(i) An owner of the goods;
(ii) A person, though, who is not the owner but is in actual or constructive possession of the goods. For example-a bailee, agent or pledgee;
(iii) A joint owner can also maintain an action of trespass to goods against his co-owner if the latter has done some act amounting to ouster (Jacobs Vs. Seward).
Defences of Justification to an action of trespass to goods
The following defences are available to the defendant in an action of trespass to goods :
(i) Self-defence of Property: If a person has actual possession of goods and another person wrongfully attempts to take the same from him, he is justied in using such force, as may be necessary, for the purpose of defending his own possession.
(ii) Exercise of absolute or relative rights: Any person under lawful distress for ren, damage feasant, can lawfully seize the goods of another.
(iii) Obedience to some legal authority: Such authority may be for instance execution of legal process, abatement of nuisance etc.
(iv) Negligent or wrongful act of the plaintiff : If a person places his horse or cart so as to obstruct the right of way, it may be removed even by applying force for that purpose.
(v) Recaption: Recaption is the retaking of the goods by the lawful owner of which he has been wrongfully deprived and the owner may justify an assault in order to repossess them.
(vi) Jus tertii: Jus tertii means the right of a third person. In a action for trespass the wrongdoer cannot set up the plea of Jus tertii, i.e., the right of possessions outstanding in some third person as against the fact of possession in the plaintiff. Where a person who is prima facie liable to another, set up a defence that the paramount title is vested in a third person, he is said to set up the Jus tertii. This defence is of no avail in trespass.
A person who has committed trespass cannot defend himself be proving that the right or title is vested in third person and that the plaintiff is in wrongful possession. In other words, no defendant in an action of trespass can plead the Jus tertii.
It is a general rule that a wrongdoer cannot set up Just tertii as a defence. But if the defendant justified his trespass on the ground that the act was committed by the authority of the true owner and thereby sets up Jus tertii, such authority is traversible by the plaintiff. But in such case the defendant must prove that such authority was given in fact.
(vii) Estoppel : This is also an important defence in certain cases of trespass, for example, a bailee is prima facie estopped as between himself and the bailor from disputing the bailor’s titled.
(viii) Rightful claim: The defendant may plead that the goods belonged to him (Ashby Vs. Mimitt).
(2) Trespass ab initio :
A person who lawfully takes a chattel, but afterwards abuses or wastes lit, renders himself liable for trespass ab initio.
Thus for instance, a bailiff, who took a horse an an astray and used it afterwards, was held liable for a trespass ab initio (Oxley Vs. Watts.)
(3) Detention:
Detention is the adverse withholding of the goods of another. The remedy in English law is an action in detinue. It lies for the specific recovery of chattels, wrongfully detained from the person entitled to the possession of them and also for damages occasioned by the wrongful detainer. The injury complained of is not the taking, nor the misuse and appropriation of the goods, but only the detention. But the plaintiff must have a special and general property and a right to immediate possession thereof. It must also be proved that the defendant is wrongful detaining it.
Justification: In an action of detinue the value of the goods to successfully plead his lien on the goods. A lien on the goods by the defendants is a good answer.
Damages: In an action of detinue the value of the goods to be paid by the defendant to the plaintiff in the event of failure to return it to him is to be so assessed as at the date of the verdict or judgement and not at that of the defendant’s refusal to return the goods; and the
same, principle applies whether the defendant has converted the goods by selling them or has refused to return them for some other reason (Rosenthal Vs. Aldertoo and Sons Ltd.)
It should be noted that a successful plaintiff in an action for detinue is entitled to have assessed separately:
(1) The value of the chattle at the date assessment; and
(2) damages up to that date (General and Finance Facilities Ltd. Vs. Coops Cart Limited)
(4) Conversion :
Conversion may be defined as wrongful taking or using or destroying of the goods or an exercise of dominion over them inconsistent with the title of the owner (Foulds vs. Willoughy)
A conversion is an act of wilful interference, without lawful justication, with any chattel in a manner inconsistent with the right of another, whereby that other is derprived of the use and possession of it.
These are three distief methods in which one may be guilty of conversion:
(1) by wrongly taking if;
(2) by wrongfully detaining; and
(3) by wrongly disposing of it,
It should be noted that mere detention in sufficient to constitute the tort of conversion.
Essentials
To constitute conversion, two ingredients are required :
(i) A wilful interference with the chattel, inconsistent with the rights of the persons entitled to it.
(ii) An intention to so interfering, to deny those rights, or to assert rights adverse to the plaintiff’s right.
Mode of conversion :
An act of conversion may be committed in the following ways:
(i) when the property is wrongfully taken;
(ii) when it is wrongfully parted with;
(iii) when it is wrongfully sold;
(iv) when it is wrongfully retained;
(v) when it is wrongfully destroyed;
(vi) when there is a denial of he lawful owner’s right.
Justification to an action for conversion
The following are the justification an action for conversion
(i) Lien: A lien is either general or particular, it should be noted that demand and refusal are not evidence of conversion where the party has a lien upon the chattel-Scarfe Vs. Morgan.
(ii) Right of stoppage in transit: This defence arises out of contract relating to sale of goods.
(iii) Denial of plaintiff’s right of property: Where the plaintiff sues relying on his right only. Where the plaintiff was in possession of the goods at the time of the conversion, the defendant cannot set up a plea of Jus tertii. Against a wrongdoer possession is a good title. But where the plaintiff was not in possession but had only the right to possess the plea of jus tertii can be set up by the defendant.
(iv) Distress: Other goods are taken under a distress or execution of a legal process.
(v) Sale in market overt: According to English Law, sale of goods in market overt gives a good title to the purchaser and such a purchaser cannot be sued for conversion if he parts with the goods or refuses to give them up on demand; but seller can be sued it he has no title (Peer Vs. Humphrey)
Remedies
The following remedies are available to the person whose goods are wrongfully converted:
(i) Recaption: A person entitled to possession of goods of which has been wrongfully deprived may retake them, whenever he finds them, by using reasonable force, if necessary.
(ii) Order of Restoration of Property: It is in the discretion of the Court whether the order will be made and it will be property refused, if the defendant has increased the value of the property by his labour.
(iii) Suit for damages: If the Chattel has no been restored the plaintiff is entitled to its full value and damages.
Damages
The measure of damages is in general the value of goods, the time of conversion, where no special damage has been sustained, and the goods have not been tended and received back after action.