But the action of conversion is a relatively recent addition to the common law. In the days of Glanvill and Bracton the action that would be used would have been detinue, which, like all praecipe actions, was based on the demandant's right, not on the tenant's (or defendant's) wrong.

It was only with the development of conversion, which was used primarily to avoid wager of law, that the action for the recovery of the value of goods belonging to the plaintiff took the form of a tort action, since conversion was, and still is, formally an action on the case. But, as Lord Mansfield said in Hambly v. Trott, 1 Cowper 371, 98 Eng. Rep. 1136 (King's Bench 1776), ``Trover is in form a tort, but in substance an action to try property.''

In most of the United States a statutory version of replevin is available for specific restitution of goods, and replevin does not sound in tort. And if damages for conversion is not an adequate remedy at law courts of equity will grant specific restitution, and do so on the ground that the goods in the defendant's possession belong to the plaintiff. Court's of equity enforce rights, they do not ordinarily grant relief against wrongs that have already occurred.

Thus I think it is safe to say that all of these actions---detinue, conversion, replevin, and specific restitution in equity---are droitural in nature. Whether that is sufficient to justify treating them as a vindicatio is a matter on which I am not competent to express an opinion.

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