¹ Clerk & Lindsell gives it one paragraph (16th ed., §22–125); Street and Salmond & Heuston about the same (9th ed. p. 68 and 20th ed., p. 112 respectively). Winfield & Jolowicz apparently relegates it to one footnote (13th ed., p. 470, n. 36).

² 2 A LEXIS search against the leading case of Mean v. L. & S. W.R. (1862) 11 C.B.N.S. 850 yielded only some half-dozen citations.

³ [1897] 2 Q.B. 57, on which see Mr. Weir's, perceptive comment (Casebook on Tort, 7th ed., p. 326)Google Scholar.

⁴ Compare Scots law, where the delicts of (i) malicious damage, and (ii) spuilzie, which covers interferences falling short of malicious damage, cover the whole area neatly, and with no apparent problems. See Walker, Principles of Scottish Private Law, 4th ed., ÷4.40 onwards.

⁵ Torts (Interference with Goods) Act 1977, s. 2(1).

⁶ See, for an overview of this. Clerk & Lindsell on Torts, 16th ed., §§22–01 et seq. The situation before the Torts (Interference with Goods) Act 1977 is also well summed up in the Law Reform Committee's Eighteenth Report, (1971) Cmnd. 4774, §§6–18.

⁷ See Clerk & Lindsell, 16th ed., §22–43.

⁸ Most importantly, if I took your property without any intent to exercise proprietary rights over it, this was no conversion, though it might be trespass: Fouldes v. Willoughby (1841) 8 M. & W. 540. See too Sanderson v. Marsden (1922) 10 Lloyd's List L.R. 467.

⁹ E.g., Simmons v. Lillystone (1853) 8 Exch. 431 (sawing through planks of wood, but not so as to destroy them, is not conversion).

¹⁰ Clerk & Lindsell, 16th ed.,§§22–43, 22–120.

¹¹ E.g, The Aliakmon [1986] A.C. 785.

¹² Except in the case of a bailment at will: Nicolls v. Bastard (1815) 2 CM. & R. 659.

¹³ Other under-protected species included mortgagees of chattels, though there is little authority on this in England—not surprisingly, perhaps, in view of the pitfalls put in the way of the creation of such mortgages in the first place by the Bills of Sale Acts.

¹⁴ Including, of course, owners of goods let on hire-purchase; on which see below, and see too Fleming, , (1958)Google Scholar 32 A.L.J. 267.

¹⁵ Compare the recommendation of the Law Reform Committee's Eighteenth Report ((1971) Cmnd. 4774)) that anyone with any possessory or proprietary interest in chattels should be able to sue for wrongful interference with them. This was unfortunately not implemented in the Torts (Interference with Goods) Act 1977: had it been, many of the problems dealt with in this paper would no longer arise.

¹⁶ The cases largely concern tenants in common; but similar reasoning must have applied a fortiori to joint tenants.

¹⁷ The effect of section 10 of the Torts (Interference with Goods) Act 1977, which mitigated the problem without entirely solving it, is dealt with below.

¹⁸ Ilustrative decisions include Brown v. Hedges (1708) Salk 290, Smith v. Stokes (1801) 1 East 363, Fennings v. Lord Grenville (1808) 1 Taunt 239 and Jones v. Brown (1856) 25 L.J. Ex. 345. See too Co.Litt., 199b. (But cf. Coleman v. Harvey [1989] 1 N.Z.L.R. 723, where the New Zealand Court of Appeal decided explicitly to abrogate the common law rule by judicial legislation.)

¹⁹ See the old case of Barnardiston v. Chapman (1714) 4 East 121n (semble). Interestingly, an identical plea had been held bad some years earlier: see Graves v. Sawcer (1672) 1 Lev. 29.

²⁰ E.g. Fraser v. Kershaw (1856) 2 K. & J. 496 (semble); Jacobs v. Seward (1872) L.R. 5 H.L. 464, 474, per Lord Hatherley.

²¹ In Ward v. Macauley (1791) 4 T.R. 489 Lord Kenyon had incautiously suggested that a plaintiff without an immediate right to possession might be able to bring trover: but this heresy was promptly exploded two years later in Gordon v. Harper (1793) 7 T.R. 9. The Law Reform Committee duly suggested ((1971) Cmnd. 4774, §34) that Lord Kenyon's view should be restored, and that any proprietary interest in a chattel should give title to sue for wrongful interference. Perhaps unfortunately, this suggestion was never implemented.

²² The development can be traced through, e.g., Bedingfteldv. Onslow (1685) 3 Leav. 209; Jesser v. Gilford (1767) 4 Burr. 2141; and Leader v. Moxton (1773) 3 Wils. K..B. 461. See today Mayfair Property Co. v. Johnston [1894] 1 Ch. 508 and Jones v. Llanrwsl UDC [1911] 1 Ch. 393, for the position with regard to trespass and nuisance respectively.

²³ Oddly enough, there are few if any cases in which the analogy was explicitly drawn. One is nevertheless tempted to speculate, since the parallel is so close, that the judges who decided the chattel cases must have in mind the position of the reversioner of land.

²⁴ (1812) 3 Camp. 187.

²⁵ (1824) I C. & P. 347.

²⁶ Though it may well be that reversionary owners had been suing successfully before then. In Farrar v. Beswick (1836) 1 M. & W. 682 at 685, Parke B. recollected having pleaded an action on the case, when he was at the Bar, in respect of interference with chattels to which the plaintiff did not have an immediate right to possession. He did not say when this was; but it must at any event have been prior to 1828, when he became a judge.

²⁷ Ibid, at p. 348.

²⁸ (1859) 4 H. & N. 438. Cf. Rogers v. McNamara (1853) 14 C.B. 27.

²⁹ In Lancashire Waggon Co. v. Filzhugh (1861) 6 H . & N . 502.

³⁰ (1862)11 C.B.(N.S.) 850.

³¹ A co-owner of land had long had an analogous cause of action against the other co-owner for dealings amounting to an abuse of his rights as such: see, e.g., Co.Litt. 200.

³² (1836) 1 M. & W. 682.

³³ (1849) 7 C.B. 229.

³⁴ Jones v. Brown (1856) 25 L.J. Ex. 345. This was again a case of wrongful seizure of partnership property, but permanent loss was averted when the plaintiff managed to prevent sale and dissipation by injunction. There are dicta to the same effect, that actual loss is required, in Farrar v. Beswick (1836) 1 M. & W. 682.

³⁵ The analogous causes of action in connection with trespass quare clausum fregit and nuisance will be put aside from now on as involving particular problems connected with injury to land.

³⁶ (1862) 11 C.B.(N.S.) 850.

³⁷ See Clerk & Lindsell, 16th ed., §22–125; Street on Torts, 9th ed., p. 68; Winfield & Jolowicz on Tort 13th ed., p. 470, n. 36.

³⁸ (1859) 4 H. & N. 438.

³⁹ It is fairly apparent that the sheriff in Tancred's case was, on the facts, innocent.

⁴⁰ Compare the position of an involuntary bailee, who owes no such duty: Phipps v. New Claridge's Hotel (1905) 22 T.L.R. 49. True, in Awad v. Pillai [1982] R.T.R. 266 an innocent borrower of a car from someone who had no right to lend it was held to owe a duty to the true owner: but this is a far cry from saying that one must take care to avoid damaging goods one reasonably thinks to be one's own.

⁴¹ [1986] A.C. 785.

⁴² See, e.g., International Factors v. Rodriguez [1979] Q.B. 351, 357 (Sir David Cairns).

⁴³ See, e.g., Emerald Construction v. Lowthian [1966] 1 W.L.R. 691 and Clerk & Lindsell, 16th ed., §§15–03, 15–19.

⁴⁴ See the Australian decisions in Henry Berry v. Rushton [1937] S.R. Qd. 109; Dee Trading v. Baldwin [1938] V.L.R. 173; and Industrial Acceptance Corp. v. Quinn [1973] Queensland Lawyer 325. The rights of the finance company are discussed at length by Fleming at (1958) 32 A.L.J. 267.

⁴⁵ (1851) 7 Ex. 152.

⁴⁶ True, in White v. Morris (1852) 11 C.B. 1015 a mortgagee successfully brought trespass against a third party. But the facts were peculiar: the mortgagee had the right to seize the goods at any time, and for this reason seems to have been treated as in an analogous position to that of a bailor at will, who always could bring trespass (see Nicolls v. Bastard (1835) 2 CM. & R. 659, note 12 above).

⁴⁷ 123 Fed. 641 (1903); see too Morin v. Hood, 79 A 2d 4 (1951, new Hampshire), and Wall v. Cohard lnc., 149 S.E. 2d 559 (1966, North Carolina)Google Scholar.

⁴⁸ E.g. where a third party steals oods from a pledgee, or damages them while in his hands.

⁴⁹ (1866) L.R. 1Q.B. 585.

⁵⁰ (1868) L.R. 3 Ex. 299.

⁵¹ See p . 302.

⁵² (I874)L.R.9EX. 54.

⁵³ Unless, apparently, Price had actually disposed of them: see Bristol & West Bank v. Midland Ry. [1891] 2 Q.B. 653, and The Future Express [1992] 2 Lloyd's Rep. 542.

⁵⁴ (1859)4H.& N.438.

⁵⁵ And assume, for the sake of argument, that the defendant does not have any evidence as to who the true owner is; i.e., that section 8 of the 1977 Act is out of the equation.

⁵⁶ (1721) 1 Str. 505.

⁵⁷ The classic example is Leake v. Loveday (1842) 4 M . & C . 972, where a t the time of the alleged conversion title had become vested by law in someone other than the plaintiff. On this case see Atiyah, (1955) 18 M.L.R. 97 and, more recently, Baker (1990)Google Scholar 16 U.Qd.L.J. 46.

⁵⁸ As in, e.g.. Bird v. Fort Frances [1949] 2 D.L.R. 791. A small boy found a large number of banknotes of unknown ownership; he handed them to his mother, and the police over-zealously seized them from her. It was held that the boy could bring conversion against the police: but presumably, as between himself and his mother, the latter was a bailee at will from whom he could have lawfully demanded them back at any time.

⁵⁹ As argued by Baker (1990) 16 U.Qd.L.J. 46; note 57 above.

⁶⁰ But not necessarily: the “mesne bailee”, for example, might have been under a contractual duty vis-à-vis his own lessee to repair the goods and hence suffer a very genuine loss.

⁶¹ (1862) 11 C.B.(N.S.) 850.

⁶² And if it is not the plaintiff will presumably fail to establish loss and so fail in limine.

⁶³ Unless, of course, the identity of the tertius involved is unclear: section 8 is limited to cases where a named third party is alleged to have a better title than the plaintiff.

⁶⁴ Clerk & Lindsell, 16th ed. §22–88 et seq.

⁶⁵ [1908] P. 206. More recently see The Sanix Ace [1987] 1 Lloyd's Rep. 465.

⁶⁶ (1859) 4 H . & N . 438. Cf. Lancashire Waggon Co. v. Fitzhugh (1861) 6 H. & N. 502. Quaere whether loss includes “moral damage” like distress and disappointment? It does in conversion: see, e.g., Carlisle v. RUC Chief Constable [1988] 9 N.I. Judgments Bulletin 1. It is suggested that there is no reason not equally to include it in cases of reversionary injury.

⁶⁷ ]1967] E.A. 473 (Uganda).

⁶⁸ (1861) 6 H . & N . 502.

⁶⁹ (1868) L.R. 3 Ex. 299, 302.

⁷⁰ (1874) L.R. 9 Ex. 54.

⁷¹ See, e.g., Wollington v. State Electricity Commission (No. 2) [1980] V.R. 91.

⁷² (1859) 4 H. & N. 43.

⁷³ (1862)11C.B.(N.S.)85O.

⁷⁴ [1938] V.L.R. 173.

⁷⁵ Quaere, however, whether one might explain this result o n the basis of mitigation of loss: i.e. that it is unreasonable in the circumstances to expect the bailee to take proceedings against someone other than the defendant?

⁷⁶ The Charlotte [1908] P. 206 above.Google Scholar

⁷⁷ [1938] V.L.R. 173; see note 74 above.

⁷⁸ He can, for instance, recover full damages for the conversion despite the fact that he could recover the goods without question from a third party, or has a cast-iron cause of action for damages against someone else, which if exercised would go to reduce his loss to nil. See the discussion of the point in Tettenborn [1993] C.L.J. 128, 140.

⁷⁹ [1967] E.A. 473.

⁸⁰ (1862) 11 C.B.(N.S.) 850.

⁸¹ For example, A buys goods from B without taking delivery: while part of the price is outstanding, the goods are stolen from B partly as a result of A's fault (e.g. by A inadvertently providing the thief with the means to impersonate him) and later pass through C's hands.

⁸² In Lloyd's Bank v. Savory [1933] A.C. 201, 229, a case decided before the Law Reform (Contributory Neglience) Act 1945, Lord Wright expressed the view obiter that contributory negligence was no defence to conversion at common law. However, in Lwnsden & Co. v. Trustee Savings Bank [1971] 1 Lloyd's Rep. 114, Lord Donaldson M.R. held that conversion was, on principle, subject to the provisions of the 1945 Act, and thus inferentially that contributory negligence had been a defence at common law. See too Souhradav. Bank of NSW [1976] 2 Lloyd's Rep. 444.

⁸³ It must be added that section 11 of the Torts (Interference with Goods) Act 1977, which specifically bars a plea of contributory negligence in respect of conversion and intentional trespass to goods, can pretty clearly have n o application to an action for reversionary damage.

⁸⁴ E.g. if the purchaser is a well-known gallery in London.

⁸⁵ [1967] E.A. 473.

⁸⁶ Cf. Fraser v. Kershaw (1856) 2 K. & J. 496, where on an application for an injunction by a coowner, it seems to have been assumed that no relief could be granted unless the plaintiff could bring himself within one of the exceptional cases where conversion would lie at common law. (In fact he could, so there was no problem.)