History of Conversion
Conversion has been described as a fascinating tort, albeit one which has largely eluded the attention of legal writers. The literature frequently laps over into that of trover. Other sources define conversion as a distinct act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his title or rights therein, or in derogation, exclusion, or defiance of such title or rights, without the owner's consent and without lawful justification.
A conversion occurs when a person does such acts in reference to the personal property of another as amount, in view of the law, to his appropriating the property for himself. The action probably developed because there was no equivalent form of action in English law to the Roman law rei vindicatio. This was an action in protection of one's property, whereby a claimant could simply allege in court "that's mine!". Early cases of conversion are to be found in 1479, where reference to an even earlier action on the case is made when the defendant "converted" the goods by changing their character, making clothes out of gold cloth.
Otherwise, conversion had its origin in the common law action in trover, as a branch of action on the case. The earliest cases are most likely lost. These probably involved cases when the finder of lost goods did not return them to the rightful owner, but used them himself or disposed of them to someone else. It became necessary to invent a new writ which covered the gap between action in trespass which lay for the wrongful taking of a chattel, and detinue which lay for its wrongful detention.
The claim in conversion had become standardized by 1554 in the case of Lord Mounteagle v Countess of Worcester (1554) 2 Dyer 121a, 73 ER 265. The plaintiff was in possession of certain goods, he casually lost them, the defendant found the goods and did not return them, but instead "converted them to his own use."
There is a distinction between trover and conversion. Trover resolved the old procedural problem of wager of law which had developed as a form of licensed perjury, which made detinue unattractive to an honest plaintiff suing a dishonest defendant. Wager at law allowed testimony from many witnesses, who might have nothing to do with the actual litigation. In this sense, it was not much different from champerty and maintenance. Because trover sidestepped these old problems, there was an effort to expand it into many different forms. The legal device to accomplish this at first was to treat the allegation of losing the goods and then finding them as a fiction. This method was seen in several cases in the 17th century. As a technical factor, the defendant was not permitted to deny losing and finding, so the only issues to be litigated were those of the plaintiff's right to possession and the conversion as an existent fact. With losing and finding no longer essential, trover became the standard remedy for any form of interference with a chattel. It entirely replaced detinue, which fell into complete disuse. It replaced trespass to chattels to such an extent that the former was rarely seen. In 1756, Lord Mansfield stated in Cooper v Chitty (1756) 1 Burr 20, 31; 97 ER 166, 172:henever trespass for taking goods will lie, that is, where they are taken wrongfully, trover will lie.
Similar results are seen in other cases from the time. The two actions were regarded as alternative remedies for the same wrong. Often, the plaintiff had a choice of action, although there were differences between the choices. Trover must involve a wrongful detention of goods which had not been wrongfully taken, while trespass would not. The theory of trespass was that the plaintiff remained the owner of the chattel, with his possession only interrupted or interfered with, so that when it was tendered back to the plaintiff, he must accept it. The damages must be limited to the loss of use, which could be considerably less than its total value. Trover, which involved lost goods or those placed in a bailment, necessitated full replacement damages. Once the damages were paid, the ownership of the chattel passed to the defendant in trover.
The modern law of conversion crystallised after the case of Fouldes v Willoughby (1841) 8 M & W 540, 151 ER 1153. Two horses owned by the plaintiff were placed on a river ferry. The horses were put back on the shore by the defendant ferryman. The plaintiff/owner of the horses remained on the ferry and subsequently lost the horses. It was held that this was a trespass, but not a conversion, since there was no interference with the plaintiff's "general right of domination" over the horses.
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