Even if there is no such reclassification, I still wonder if there is any point to having different branches of the law, other than to allow academics to come up with matters to dispute about that should---at list in the Richterkoenigtum of the Common Law---be of no actual significance or, more legitimately, to allow students and practitioners a convenient way of cataloguing matters that will usually work pretty well in run-of-the-mill cases.

Cutting the legal system down and searching for common principles is fine (Danie Visser's lumpers and splitters comes to mind). Nevertheless, some basic structure has to be maintained.

Possibly.

But surely in Common Law jurisdictions that structure should be the native structure of the Common Law, not the alien structures of the Romanists and the Civilians. And those of an academic bent who do categorize Common Law actions seldom if ever speak of proprietary actions in the context of chattels. There are real actions that are, or were, proprietary, and personal actions that have been divided into contract actions and tort actions (and sometimes quasi-contract actions.) (Today the old real actions like the old writ of right have all been replaced by ejectment which is in form an action of trespass, even though both the trespasser and the trespassee, as well as the trespass itself, are fictions.)

But this division of personal actions into contract actions and tort actions seems to have been based more on Roman law categories than on anything in the Common Law.

The writ in an action of detinue (and the writ in an action of debt, for that matter) was in form indistinguishable from the writ in the "praecipe'' action known as a Writ of Right to recover a parcel of land. Thus detinue and debt (which are not tort actions and not contract actions) were basically proprietary. At least detinue was as proprietary as any real action, since it was an action to recover a specific chattel. (Although, of course, the defendant had the option of returning the chattels value, rather than the chattel itself.)

But no common law action, no matter how proprietary it was, required any recognition of something like ownership or _dominium_ or, I submit, even property until the action of trover and conversion evolved out of the tort action of trespass on the case.

In Scots law we have some of the same difficulties. The action for restitution of one's property (*it is mine and I demand it back*) is a property action, but can also be categorised by the response - the restitutionary response. However, as Peter Birks has shown, differentiating between the source of the right or obligation and the response is of fundamental importance. Am I alone in thinking that these have been slightly muddled up in Gotha City?

I don't know whether you are alone, but I certainly am not with you.

As I understand what was going on in Gotha the action there was in effect an action of conversion and the conversion action in England (where replevin has not generally been available except in cases of an unlawful distress and detinue has been abolished by statute) is a, and the only, legal proprietary action for the recovery of goods and chattels.

I have already cited Lord Mansfield's statement in Hambly v. Trott that conversion is an action that in substance is based on property and is only in form based on tort. (And, by the way, actions for breach of contract at law where the writ used was assumpsit, were also, like trover, tort actions in form since the writ was simply a variant of the general writ of trespass on the case.)

But if anyone should doubt that Lord Mansfield was talking about, here is the writ that was used in conversion actions:

"Trespass on the Case

In Trover.

George the Fourth, &c., to the Sheriff of ___ greeting. If A.B. shall make you secure of prosecuting his claim, then put by gages and safe pledges, C.D., late of ___ gentleman, that he be before us in eight days of Saint Hilary, wheresoever we shall then be in England, to show for that whereas the said A.B. heretofore, to wit, on the ___ day of --- in the year of our Lord ___ at ___ in the county of --- was lawfully possessed, as of his own property, of certain goods and chattels, to wit, twenty tables and twenty chairs of great value, to wit, of the value of ___ pounds, of lawful money of Great Britain; and being so possessed thereof, he, the said A.B. afterwards, to wit, on the day and year aforesaid, at ___ aforesaid, in the county aforesaid, casually lost the said goods and chattels out of his possession; and the same afterwards, to wit, on the day and year aforesaid, at ___ aforesaid, in the county aforesaid, came to the possession of the said C.D. by finding; Yet the said C.D., well knowing the said goods and chattels to be the property of the said A.B., and of right to belong and appertain to him, but contriving and fraudulently intending, craftily and subtilly, to deceive and defraud the said A.B. in this behalf, hath not as yet delivered the said goods and chattels, or any part thereof, to the said A.B. (although often requested so to do); but so to do hath hitherto wholly refused, and still refuses; and afterwards, to wit on the --- day of --- in the year --- at ___ aforesaid, in the county aforesaid, converted and disposed of the said goods and chattels to his, the said C.D.'s own use, to the damage of the said A.B. of pounds, as it is said; and have you there the names of the pledges, and this writ. Witness ourself, at Westminster, the --- day of ___ in the ___ year of our reign."

(This form is taken from the 1824 edition of John Henry Stephen's _Treatise on the Principles of Pleading in Civil Actions_.)

Note the critical allegations that the goods were the plaintiff's "property''. None of the older proprietary actions needed to use this term, which first appears in the writ of trover and conversion and which is not formally a proprietary action, but rather is in form a tort action. But the critical point that the plaintiff has to prove in a conversion action is that the goods are his property, and only then does he have to prove that the defendant conveted the goods to his own use.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
URL: http://samsara.law.cwru.edu