[3] Trespass to Goods
Trespass to goods is wrongful direct physical interference with the possession of them, viz throwing stones on car, shooting birds, beating animals, removing or injuring or destroying goods, infecting the animals with disease or chasing animals to make them run away from its owner’s possession. The plaintiff must at the time of trespass have the present possession of goods, either actual or constructive (e.g. an agent, a bailee), or a legal right to the immediate possession (the proof of title to the goods not required).
The wrong may be committed intentionally, negligently, or even by a honest mistake. In Kirk v Gregory (1876)1 Ex D 55, on A’s death his sister-in-law removed some jewellery from the room where his dead body was lying, to another room under a reasonable but mistaken belief that the same was necessary for its safety. The jewellery got stolen. A’s sister-in-law was held liable for the trespass of jewellery.
Detinue
Detention is the adverse withholding of the goods of another. Detinue is an action under which the plaintiff (lawfully entitled to possession) can recover the goods from the defendant when the same are being wrongfully detained by the latter. The injury complained of is not the taking, not the misuse and appropriation of the goods, but only the detention. Where the defendant having taken a cycle on hire from the plaintiff failed to return the same, he was held liable to pay the plaintiff the estimated value of the cycle i.e. Rs.300, under an action for detinue.
If the original possession is lawful but subsequently the goods are wrongfully detained, an action for detinue can be brought. Thus, if a bailee refuses to deliver the goods after the bailment is determined he is liable in detinue. It may be noted that trespass de bonis asportatis, i.e. wrongful taking of goods is wrongful ab initio, whilst in detinue possession is acquired rightfully but detention of the goods is wrongful.
A lien on the goods by the defendant is a good answer (justification). It may be noted that when the goods are returned to the plaintiff in a damaged condition, the remedy of detinue is of no help to the plaintiff. Detinue stands abolished in England by the Torts (Interference with Goods) Act, 1977 which however allows for conversion remedies that were available under common law for detinue. There is no corresponding Act in India. Sections 7 and 8 of the Specific Relief Act, 1963 provide for the recovery of specific movable property at the suit of a person entitled to immediate possession generally when the defendant is an agent or a trustee for the plaintiff.
