CAVENDISH UNIVERSITY ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

FULL NAME: JESSICA NAMUKONDA

PHONE NUMBER: +260 973134618

EMAIL ADDRESS: [email protected]

MODE OF STUDY: FULL TIME

YEAR: 02

STUDENT NUMBER: 053 - 029

INTAKE JANUARY 2021

ONE/TWO YEAR
LECTURER: MR. F. MOONDE

SUBJECT: CUZL 213- NOMINATE TORTS

ASSIGNMENT NO: 01

DATE HANDED OUT: 25TH FEBRUARY, 2021

DATE DUE IN: 15TH MARCH, 2021

ASSIGNMENT BRIEF:

IDENTIFY AND DISCUSS THE MAJOR ASPECTS OF TRESPASS TO GOODS.

pg. 1
TABLE OF CONTENTS

1. INTRODUCTION ……………………………………………………………….….…...1
2. WHAT IS TRESPAS TO GOODS? …………………………………………………..…1
3. TYPES OF TRESPASS TO GOODS …………………………………………………….1
4. DEFENCES …………………………………………………………………………...….2
5. REMEDIES …………………………………………………………………………....….3
6. CONCLUSION………………………………………………………………………........3
7. BIBLIOGRAGHY…………………………………………………………………….…..4

pg. 2
 1. INTRODUCTION

This essay identifies and discusses the major aspects of trespass to goods. The paper first defines trespass to
goods. Then, the major aspects of trespass to goods are discussed. Thereafter, the conclusion is drawn.

2. WHAT IS TRESPASS TO GOODS?

Trespass to goods is a wrongful physical interference with the goods in possession of another. 1 This is in
accordance with the case of Fouldes V Willougby (1841) in which the owner of two horses had come on board
a ferry from Birkenhead to Liverpool. The ferryman refused to carry the horses. The owner refused to take
them back on shore, and so the ferryman took the bridle from the owner turned the horses loose at the landing.
The owner stayed put on board, and did not try to get the horses back. He sued the ferryman for conversion.
The judge at the trial told the jury that the defendant ferryman, by taking the horses from the plaintiff and
turning them out of the vessel, had been guilty of a conversion. The ferryman appealed.
The Exchequer Court held that the ferryman was not guilty of conversion, because there was no interference
with the plaintiff's "general right of dominion" over the horses
2
Trespass is an interference with possession, it follows that if the plaintiff was not in possession (actual or
Constructive) at the date of the alleged meddling, they cannot sue for trespass.

3. TYPES OF T RESPASS TO GOODS

The following are the types of trespass to goods:

a) Conversion
Conversion is committed when the defendant deals with the goods of the plaintiff which deprives the plaintiff
of the use or possession of those goods. It is committed when the defendant wrongfully takes possession of the
goods or wrongfully disposes them, or wrongfully misuses them, or destroys them or wrongfully refuses to
give them back when demanded. There must be a deliberate act of depriving the plaintiff of their rights in
relation to goods. It must be a willful interference, without lawful justification, with the property and hence the
act is deliberate. This is according to the case of Hollins V Fowler (1875) where Fowler fraudulently gained
cotton from Hollins and he accepted it. Hollins received their commission. The issue was whether Hollins was
liable or not.
Hollins was held liable because it was a knowingly mistake. And he was held liable for the conversion.

1
CUZL 213- Nominate Torts Module
2
lbid
pg. 1
 b) Detinue
Detinue is the unlawful retention (continued possession, use or control) of goods belonging to another thereby
denying them the right to possession of the same goods. The defendant may have obtained the goods with the
permission of the plaintiff but fails or refuses to return them when asked.

4. DEFENCES

The following defenses are available to the defendant to avoid liability under trespass to goods:

a) Jues tertii

This simply translates “the right of third party”. Under this defense, the defendant pleads that some third party
has a superior title to that of the plaintiff. This is in accordance with the case of Armory V Declaration (1722)
EWHC 594 in which the claimant, a chimney sweep boy, found a gold ring which he took to the defendant, a
jeweler to be valued. The jeweler’s apprentice took out the precious stone and stole it and offered to buy the
ring (minus the precious stone) from the claimant for three halfpence. The claimant then demanded it back.
The issue in this case was whether the claimant’s prior right of possession was superior to that of the
defendant, despite neither party being the true owner of the ring.
The court held that the claimant’s prior right of possession was better than that of the defendant.

b) Authority of law such as bailiffs and through court orders.

Orders by the court to excuse the defendant can act as defense. In some jurisdictions, a person is appointed by
the court to handle the affairs of an incompetent person or to be a keeper of goods or money pending further
order of the court3. The person appointed is called a bailiff.

c) Abatement of nuisance

Abatement of nuisance is the extinction or termination or removal or destruction of something that has been
found to be a nuisance whether effected physically by it or under the direction of the party injured by
the nuisance, or by suit instituted by him or her.

5. REMEDIES

3
bailiff | Wex | US Law | LII / Legal Information Institute (cornell.edu) [accessed on 1st March, 2021]

pg. 2
The following remedies are available to the plaintiff under trespass to goods:

a) Damages
Damages are compensation or indemnity for a loss suffered by a person following a tort, breach of contract or
breach or some statutory duty4.

b) Redelivery
Redelivery in simple terms is the act of returning something, restitution or restoration. So, redelivery takes
place AFTER the initial delivery attempt.

c) Retaking of goods (Recaption)

Recaption is the process of taking back one's own property or goods without causing a breach of the peace.5

The difference between redelivery and recaption is that; for redelivery, the defendant takes back the goods to
the claimant; and for recaption, the claimant goes to the defendant and gets back his own goods.

d) Replevin (Howard v British Board (1980) 1WLR 1375)

Replevin is a procedure whereby seized goods may be provisionally restored to their owner pending the
outcome of an action to determine the rights of the parties concerned. 6 This can be seen in the case of Howard
V British Board (1980) 1WLR 1375 where the defendant refused to allow the claimant to remove a
consignment of steel during a steelworkers’ dispute. As still was otherwise unobtainable at the time, damages
were not an adequate remedy. So replevin was used as the remedy.

6. CONCLUSION
The paper has defined trespass to goods and the major aspects of trespass to goods (which are the types
of trespass to goods, defenses available for the defendant to avoid liability under trespass to goods and
remedies available) have been discussed.

7. BIBLIOGRAPHY
4
Sweet and Maxwell “Osborn’s Concise Law Dictionary” (1927) 12th Edition, Mick Woodley.
5
Recaption definition and meaning | Collins English Dictionary (collinsdictionary.com) [accessed on 1st March, 2021]
6
Oxford Languages and Google - English | Oxford Languages (oup.com) [accessed on 1st March, 2021]
pg. 3
Sweet and Maxwell “Osborn’s Concise Law Dictionary” (1927) 12th Edition, Mick Woodley.

CUZL 213- Nominate Torts Module

bailiff | Wex | US Law | LII / Legal Information Institute (cornell.edu) [accessed on 1st March, 2021]

Recaption definition and meaning | Collins English Dictionary (collinsdictionary.com) [accessed on 1st March,
2021]

Oxford Languages and Google - English | Oxford Languages (oup.com) [accessed on 1st March, 2021]

TABLE OF CASES
Armory V Declaration (1722) EWHC 594

Fouldes V Willougby (1841) 8 M & W 538

Hollins V Fowler (1875) LR7

Howard V British Board (1980) 1WLR 1375

pg. 4