Odger's English Common Law

TRESPASS TO GOODS, DETINUE AND CONVERSION. 457
goods passes to C, because B. had no property to pass. C.
is not to blame in the matter, and so far no action lies
against him. But as soon as A. discovers where the goods
are and gives C. notice of his title and demands possession
of the goods}"from him, any further detention of them on the
part of C. will be a tort. He is entitled to a reasonable time
for making proper inquiries ; if he ascertains nothing to cast
doubt on A.'s claim, he ought to return them to him at once.
If he fails to do so, he will be liable for damages in an action
of detinue. Moreover the refusal to give the goods up, after
a formal demand duly made, is some evidence to go to the
jury of a conversion. But C. will in no case be liable to pay
any damages for the original trespass ; he has not directly
violated the true owner's possession.
Lastly, if B. sold the goods to C. for a full price, the true
owner of them may, if he thinks fit, waive the tort and
recover from B. the money which C. paid him. 1
Under the old common law there were four different remedies for the
wrongful deprivation of goods, viz. :—the actions of trespass to goods,
detinue, replevin and trover. 2
Trespass and trover were actions to recover
damages merely ; the first for the injury to the possession, the second for
the loss of the property ; but the actions of detinue and replevin were both
brought for the return of the goods. - The actions of trespass and replevin
could be maintained against any one who forcibly took the goods out of the
possession of the plaintiff ; the actions of detinue aud trover lay also against
any person who subsequently came into possession of the goods by any
means and wrongfully withheld them from the plaintiff. In trespass and
replevin the plaintiff was always in possession of the goods and the defen-
dant out of possession at the time when he commenced his wrongful acts.
In detinue and trover, on the other hand, the plaintiff was always out of
possession and the defendant in possession of the goods when the tort was
committed.
These were all actions founded on the right of possession. Curiously
enough, there was no form of action at common law merely to determine a
dispute as to the ownership of the goods, though questions of ownership
would frequently arise indirectly, as, for example, if the defendant in
justification of his conduct asserted that the goods were his and that
he had therefore an immediate right to the possession of them. But now,
since 1883, a plaintiff can bring a separate action to obtain from the Court
i Smith v. Baker (1873), L. R. 8 0. P. 350.
2 This was the old name foi an action of conversion. As the defendant was, not
charged with any trespass, it was assumed that he had innocently found the goods
sotcowhere, and then wrongfully converted them to his own use.