Trover
Trover is a form of lawsuit in common law jurisdictions 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.
Overview
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.Early trover cases involved the keeping or taking of a bailment by the bailee. Others concerned the use of lost chattels found by another and determining 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 exercise 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.
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.
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 only "most correct" owner could be determined. For instance, if an envelope of bank notes or currency were to be found, the court would attempt to identify the true owner, but this would often prove to be impossible. In that case, the finder would be the next best owner and be considered the rightful 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 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 which was a form of theft. If the taker had made improvements on the object, the value of such improvements are not deducted from the plaintiff's recovery unless the taking was by mistake.
Trover as an extension of detinue and 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.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.
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 chattels 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 it was stated "it is not enough to say, 'you did not bail to me' , but one must add, 'and I do not detain it 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.
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 liability 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, as 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 distinguished 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 defendant. 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 and 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.