Trover

Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself (see replevin).

Trespass and trover were both actions founded upon possession. For many centuries, they were alternative remedies for the wrongful taking of, or damage to chattels. There was a distinction between the actions. In the theory of trespass, the plaintiff remained the owner of the chattel, with the possession or property rights interrupted or interfered with. In this case, the plaintiff must accept the chattel back when it was tendered.[5] Recovery was limited to any damage to the chattel, or from the interruption of property rights.
In the time of Bracton, despite the generality of the writ, the bailor of a chattel could only bring this action against the bailee of the chattel, or those who represent the bailee by testate or intestate succession. Only two actions were available. The plaintiff could claim, “I lost the goods and you found them.”; or “I bailed the chattel to you.” The first of these was called detinue sur trover.[7]
There is some evidence that the action had been used in the generation following Bracton during the reign of Edward I of England.[8][9][10] In earlier times, the finder who did not take the witness of his neighbors that he had honestly found the chattel was at risk of an actio furti.[11]
In those days, action in detinue sur trover could not lie against a third party. If a person bailed his chattels to another, and that bailee wrongfully gave, sold or bailed the chattels to a third party, the only action was against the original bailee. Liability to the third bailee was not transferable. In later times, lawyers would talk of trover and bailment. In 1292, there was a slight tendency to regard the detainer rather than the bailment as the gist of the action, where is was stated “it is not enough to say, ‘you did not bail to me’ [in defense], but one must add, ‘and I do not detain it [use of the chattel] from you.’”[12] But there are other later cases which show that it is impossible or at least extremely difficult for the bailor to fashion any count that will avail him against the third party. The third party was called the “third hand”.[13][14][11]
Sir William Holdsworth described trover as an extension of detinue, which enabled not only a bailor and a dispossessed owner, but also a third person, to whose use goods had been bailed, to get full recognition of their interests.[6]
In colonial America, replevin was used more often than detinue. In England the scope of replevin was usually limited to action in distress (where a chattel had been taken by a person who intended to hold it as a bargaining chip to force some action by the true owner).[5]
By the end of the seventeenth century, the great bulk of litigation in England was conducted through the various forms of action which had developed from trespass. This remained the case until the nineteenth century, when these kinds of forms of action were abolished in succession by statute. By 1875, all remaining forms had been replaced by a single form uniform writ whereby the plaintiff endorses the statement for a claim. By that time, the change was purely procedural, but it also freed the substantive law from the old medieval forms of action. It permitted the development of broad concepts, such as liability in tort which could never have come about when confined by the old forms of action, such as trover. This served to rationalize the law. Just as forms of assumpsit replaced debt, so in the seventeenth century trover replaced detinue.[5]
In the reign of Edward IV of England, the question arose whether a charter relating to land could be recovered by detinue in view of the fact that it had no value.[15]