TORT 073 Detinue the Distinctions and the Remedies for Wrongs to Goods — Law of Torts Notes for Judiciary

Detinue, the Distinctions Between the Wrongs to Goods, and the Remedies Including the Measure of Damages

Conversion gives the value of the goods, which suits a plaintiff whose property has been sold, consumed or destroyed. It does not suit a plaintiff who wants the thing itself, whether because it is unique, because it is difficult to value, or because he simply wants it back. Detinue was the action for such a plaintiff, and its distinctive feature was that judgment could be for the return of the goods. It has been abolished in England and survives in substance in India, where its function is now performed by sections 7 and 8 of the Specific Relief Act, 1963.

Detinue, trespass against conversion, conversion against detinue, and the four remedies

1. Detinue

Detinue was an action for the wrongful detention of goods, brought by a person entitled to immediate possession against a person who refused to deliver them up.
It was founded on a demand and a refusal. Unlike conversion, which may be established by an act that speaks for itself, detinue always rested on the defendant's refusal to return the goods on demand.
Its distinctive feature was the form of the judgment. The court could order the return of the goods themselves, or their value at the plaintiff's option, together with damages for the period of the detention.
It has been abolished in England by the Torts (Interference with Goods) Act 1977, which replaced the separate forms of action with a single statutory wrong of wrongful interference with goods, covering conversion, trespass to goods, negligence resulting in damage to goods, and any other tort resulting in such damage.
India has no such statute, so the common law forms survive here in substance, though a plaintiff in practice frames his claim under the Specific Relief Act, 1963 rather than in detinue by name.

2. Trespass to Goods and Conversion

	Trespass to goods	Conversion
The interference	Any direct interference, however slight	A dealing amounting to a denial of the plaintiff's title
What is protected	Possession	The right to possession
Who may sue	The person in possession at the time	A person with possession or an immediate right to possession
Is damage required	No. Actionable per se	The measure is the value of the goods, which is the substance of the claim
The measure of damages	The diminution in value, or the cost of repair, or nominal damages	The full value of the goods at the date of the conversion
Gravity	Scratching a car is trespass	Selling the car is conversion
Effect of the judgment	The plaintiff keeps his goods and is compensated for the interference	In substance a forced sale: the defendant pays for the goods

3. Conversion and Detinue

	Conversion	Detinue
The wrong	A dealing inconsistent with the plaintiff's title	A wrongful detention of the goods
Is a demand needed	Not where the act speaks for itself, as with a sale or destruction	Always. The action rests on demand and refusal
The judgment	Damages measured by the value of the goods	Return of the goods, or their value at the plaintiff's option, with damages for the detention
The date of valuation	The date of the conversion	The date of the judgment
Is it a continuing wrong	No. A conversion is complete when it occurs	Yes. The detention continues so long as the goods are withheld
Where the goods are destroyed	Conversion lies, the goods being gone	Detinue lies only if the defendant wrongfully parted with or destroyed them after the demand

The difference in the date of valuation matters in a rising market, and was one of the practical reasons a plaintiff might prefer detinue.
The other, and more important, reason was that detinue could get the goods back. Conversion never could, since its judgment was always in money.

4. The Remedies

The remedy	What it gives
Damages	The ordinary remedy. In conversion, the market value of the goods at the date of the conversion, together with consequential loss that is not too remote. In trespass, the diminution in value or the cost of repair, with nominal damages where no harm was done
Return of specific goods	Under sections 7 and 8 of the Specific Relief Act, 1963
Recaption	Self help: the owner retakes his own goods, using no more force than is reasonable
Injunction	To restrain a threatened conversion or a continuing wrongful detention, in a proper case

Sections 7 and 8, Specific Relief Act, 1963

Section 7: a person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908. A trustee may sue for the possession of property to the beneficial interest in which the person for whom he is trustee is entitled, and a special or temporary right to present possession is sufficient to support such a suit.

Section 8: any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in the following cases: where the thing claimed is held by the defendant as the agent or trustee of the plaintiff; where compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed; where it would be extremely difficult to ascertain the actual damage caused by its loss; and where the possession of the thing claimed has been wrongfully transferred from the plaintiff.

5. The Measure of Damages

In conversion, the market value of the goods at the date of the conversion. That figure represents what the plaintiff has lost, since the defendant's dealing has, in substance, taken the goods from him.
Consequential loss is recoverable so far as it is not too remote: loss of profit on a resale the plaintiff had arranged, the cost of hiring a replacement, expenses reasonably incurred in attempting to recover the goods.
Where the goods have been returned, the damages are the loss caused by the detention, together with any depreciation in the meantime.
Improvements made by the defendant may be allowed for, where he acted in good faith in the mistaken belief that the goods were his.
In trespass, the measure is the diminution in value or the reasonable cost of repair, and nominal damages where no harm was done.
Aggravated or exemplary damages are available where the interference was high handed, insulting or deliberate.

6. Recaption

The owner may retake his own goods, using no more force than is reasonable in the circumstances.
He may enter the land of the wrongdoer who took them, since the wrongdoer cannot complain of a trespass occasioned by his own wrong.
He may not enter the land of an innocent third party except on request and refusal. Where the goods came onto that land by accident or by the act of a third person, the owner must ask for them before he enters.
The remedy is not favoured, for the usual reasons: it invites a breach of the peace, and a person who miscalculates his rights exchanges a good claim for a liability of his own.

⚠ Why the law of wrongs to goods looks untidy, and what holds it together

Trespass to goods, conversion and detinue overlap so extensively that on a single set of facts all three may be available, and English law eventually gave up and replaced them with one statutory wrong. The untidiness is historical: each grew out of a different form of action with its own procedure, and the boundaries between them were drawn by the writ system rather than by principle. But there is a real distinction underneath, and it is worth holding onto, because it survives the abolition of the forms. The three torts answer three different questions a plaintiff may be asking. Trespass answers "you interfered with my goods and I want compensation for that interference." Conversion answers "you dealt with my goods as though they were yours, and I want their value." Detinue, and now section 8 of the Specific Relief Act, answers "you have my goods and I want them back." A plaintiff who knows which of those three things he actually wants will have very little difficulty framing the claim.

7. The Position Stated Shortly

1. Detinue was an action for the wrongful detention of goods, founded on demand and refusal, in which judgment could be for the return of the goods.

2. It has been abolished in England by the Torts (Interference with Goods) Act 1977, which created a single wrong of wrongful interference with goods.

3. India has no such statute, and the plaintiff's practical route to recovery of the goods is sections 7 and 8 of the Specific Relief Act, 1963.

4. Trespass protects possession and conversion protects the right to possession; trespass covers any direct interference and conversion only a denial of title.

5. Conversion values the goods at the date of the conversion; detinue valued them at the date of the judgment.

6. A conversion is complete when it occurs; a detention continues so long as the goods are withheld.

7. Section 8 allows specific delivery where the thing is held as agent or trustee, where money would not be adequate relief, where the damage is extremely difficult to ascertain, or where possession was wrongfully transferred.

8. The measure in conversion is the market value at the date of conversion, together with consequential loss that is not too remote.

9. In trespass the measure is the diminution in value or the cost of repair, with nominal damages where no harm was done.

10. Recaption permits an owner to retake his goods with reasonable force, entering the wrongdoer's land but not an innocent third party's except on request and refusal.