Early in its history, the English COMMON LAW recognized the rights of a person whose property was wrongfully held (or detained). Such a person could bring an action of DETINUE to recover the goods or, later, could bring an action on the case to recover the value of the goods. In the course of the sixteenth century, the action of trover developed as a specialized form of action on the case.
The action of trover originally served the plaintiff who had lost property and was trying to recover it from a defendant who had found it. Soon the lost and found portions of the plaintiff's claim came to be considered a legal fiction. The plaintiff still included them in the complaint, but they did not have to be proved, and the defendant had no right to disprove them. This brought the dispute immediately to the issue of whether the plaintiff had a right to property that the defendant would not give over to him or her. For some cases, it still was necessary for the plaintiff to demand a return of the property and be refused before he or she could sue in trover. It was reasonable to expect an owner to ask for his or her watch, for example, before the repairperson holding it could be sued for damages. The measure of damages in trover was the full value of the property at the time the conversion took place, and this was the amount of money the plaintiff recovered if he or she won the lawsuit.
Trover proved to be more convenient for many plaintiffs than the older action of detinue because a defendant could defeat a plaintiff in detinue by WAGER OF LAW. This meant that the defendant could win the case by testifying under oath in court and having eleven neighbors swear that they believed him or her. In addition, the plaintiff in trover was not obligated to settle for a return of the property, regardless of its current condition, and did not have to prove that he or she had made a demand for the property if the defendant had stolen it. Since it was the plaintiff who selected the form of the action, he or she was more likely to choose trover over detinue.
Today the ancient forms of action have been abolished, but the word trover is still used sometimes for an action to recover possession of personal property, and its history has contributed to developments in this area of the law.