away by floating ice, and that the defendant, being employed generally by the plaintiff to look after his barges, removed the barge from a place of danger to a place of safety(i).

The plea of not guilty in actions for the conversion of chattels puts in issue the wrongful character of the act, so that if the defendant detained them in the exercise of a legal right consistent with the fact of the right of property being in the plaintiff, the true character of the detainer and the existence of the right may be given in evidence under the plea of not guilty. The demand and refusal of the goods are not in themselves an actual conversion, but only evidence of it(j). Any fact, therefore, explanatory of the demand and refusal is receiv able in evidence under the plea of not guilty, because it goes directly to show that there was no conversion at all: such as the fact that the defendant has a lien upon the chattel in his hands, or that he and the plaintiff were joint-owners of the chattel, and that what the defendant did was in the exercise of his legal rights as joint-owner with the plaintiff (k), or that the defendant had some qualified right in it, and has only dealt with the article in the manner in which he was entitled to deal with it in the exercise of his legal right(). But a defence to the effect that the chattels had been given by the defendant to the plaintiff, subject to a condition not performed, whereupon they again became the property of the defendant, whereupon the latter retook them, and claimed to keep them as his own property, is not admissible under the plea of not guilty(m).

530 Pleas denying the plaintiff's right of property in, or his right to the possession of, the chattel.-If the defendant intends to dispute the plaintiff's title to, or his right to the possession of, the chattel taken or converted, he must plead a plea, alleging that the goods and chattels taken or converted were not, at the time of the alleged conversion, the property of the plaintiff, or that the plaintiff was not then entitled to the possession of them(mm). Under this plea the defendant is at liberty to set up any circumstances showing that the plaintiff has no

Salt Springs National Bank v.

(i) Milman v. Dolwell, 2 Campb. 378. (j) Munger v. Hess, 28 Barb. 76. Wheeler, 48 N. Y. 492. Robinson v. Hartridge, 13 Florida, 501. Yale v. Saunders, 16 Vt. 243. Morris v. Thomson, 1 Richardson, 65. Lockwood v. Bull, 1 Cow. 322. Buck v. Ashley, 37 Vt. 475. Ellis v. Wire, 33 Ind. 127.

(k) Higgins v. Thomas, 8 Q. B. 908.

(1) Young v. Cooper, 6 Exch. 259; 20 Law J., Exch. 136. 14 M. & W. 272. Wilkinson v. Whalley, 5 M. & Gr. 590. 495.

Drew v. Spaulding, 45 N. H. 472.

(m) Jones v. Davies, 6 Exch. 663; ante, pp. 88, 180. (mm) But see Coffin v. Anderson, 4 Blackf. 395.

Parke, B., in Kynaston v. Crouch,

Verrall v. Robinson, 2 C. M. & R.

property in, or right of possession of, the goods, in respect of which he is entitled to maintain the action against the defendant. A plea, denying that the goods are the goods of the plaintiff, puts in issue the plaintiff's property in, as well as his right to the possession of, the goods(n). If the defendant has, by contract, acquired a right to take and carry away the chattel, the contract may be given in evidence under a plea denying that the chattel was at the time of the seizure the chattel of the plaintiff(o). Under this plea it is competent to the defendant to show that the plaintiff had parted with the property before the cause of action arose, or that the defendant had a lien upon the goods, as a right of lien on the part of the defendant is inconsistent with a right of possession on the part of the plaintiff(p), or that the title to the goods had become vested in a trustee or trustees under a bankruptcy (9), or that the plaintiff's title has been defeated by matter subsequent to the bailment("). In an action against trustees of a bankrupt for the conversion of chattels, the defence that the goods were at the time of the bankruptcy in the order and disposition of the bankrupt, with the consent of the true owner, and that the title to the goods vested in the trustees, is admissible under a plea of not possessed(s).

A plea of the previous recovery of judgment by the plaintiff in an action for the conversion of the property brought against some third person, under whom the defendant claims, is, as we have seen, an answer to the action(t).

531 Pleas of justification.—If the defendant intends to justify the taking of the goods on the grounds distinct from any question of title or right of property or possession, he must set forth his ground of justification in a special plea; such as, that the goods and chattels mentioned in the declaration were wrongfully upon the defendant's land, encumbering the same, and doing damage there to the defendant, whereupon the defendant took the goods and carried them to the plaintiff's land, and deposited them there, doing no damage to them that could be reasonably avoided(u): or if the plaintiff complains of

(n) Harrison v. Dixon, 12 M. & W. 142. (0) Richards v. Symons, 8 Q. B. 90. (p) Dorrington v. Carter, 1 Exch. 566. Brown, 5 M. & W. 298. Owen v. Knight, 4 B. N. C. 54.

Lane v. Tewson, 12 Ad. & E. 116, n.

Barton v.

(q) Leake v. Loveday, 5 Sc. N. R. 921 ; 4 M. & Gr. 972. Howarth v. Tollemache, ib. 329. (r) Martin, B., Thorne v. Tilbury, 3 H. & N. 539; 27 Law J., Exch. 407; post, ch. 21. (8) Heslop v. Baker, 8 Exch. 411; 22 Law J., Exch. 333. Isaac v. Belcher, 5 M. & W. 139. (t) Ante, pp. 441, 442. The defence of a valid release to a co-trespasser may also be pleaded in bar. Montgomery v. Irwin, 24 Ark. 540. As to the plea of former recovery, see Miller v. Manice, 6 Hill, 114.

(u) Cole v. Maundy, Rea v. Sheward, 2 M. & W. 426.

the shooting of his dog by the defendant, the latter may justify the trespass or conversion of the animal, on the ground that the dog was trespassing on the defendant's land in pursuit of and worrying the plaintiff's sheep, or hunting and chasing the defendant's deer, and that the defendant had no means of protecting his sheep or deer from injury but by shooting the dog, and that he therefore shot it(x). 532 Evidence at the trial-Proof by the plaintiff.-To enable a plaintiff to maintain an action and recover damages for a seizure or conversion of chattels, he must show that the seizure was wrongful, and that he has been damnified by it(y). He must, therefore, give some general evidence of his right to the chattel, and of the wrong done to him by the defendant in taking it away; for if there is no proof of his having ever been in possession of the chattel, or of his having any right to the possession of it, there is no proof of any wrong having been done to him, nor any evidence of any cause of action, nor anything to support the material averments of the plaintiff's declaration(z). Where the plaintiff proved that the defendant seized some chairs and tables in a house which was not the plaintiff's house, and carried them away, and the only plea on the record was a plea of not guilty, it was held that the plaintiff must, nevertheless, give some general evidence of his right to the possession of the chairs and tables to constitute a cause of action, and establish the tort or wrong charged in the declaration(a). If in a declaration' for a trespass in entering a house and seizing goods there is no allegation that the goods belonged to the plaintiff, nor any admission to that effect on the record, there is no disclosure of any cause of action (b). Possession of chattels, however, is primâ facie proof of ownership, and mere proof of possession will entitle a plaintiff to recover in an action of trespass or trover against a wrong-doer(c).

533 Proof of constructive possession of chattels.-If a man cuts down wood

(x) Barrington v. Turner, 3 Lev. 28.

(y) Tancred v. Allgood, 4 H. & N. 438; 28 Law J., Exch. 362.

(z) Channon v. Patch, 5 B. & C. 897. To support an action of trover, the plaintiff must prove property, and the right of possession in himself, and a conversion by the defendant of the thing to his own use. Salt Springs National Bank v. Wheeler, 48 N. Y. 492. Picquet v. M'Kay, 2 Blackf. 465. See Stephenson v. Little, 10 Mich. 433; Vanderburgh v. Bassett, 4 Maine, 242. If the defendant has a color of title, the plaintiff must show title as well as possession. Fightmaster v. Beasley, 7 J. J. Marsh. 410.

To sustain the action it must also be shown that the article sued for is of some value. Miller v. Reigue, 2 Hill (S. C.), 592. See Sterling v. Garritee, 18 Md. 468.

(a) Forman v. Dawes, Car. & M. 129.

(b) Pritchard v. Long, 9 M. & W. 666.

(c) Webb v. Fox, 7 T. R. 397. See post, p. 455; Jones v. Sinclair, 2 N. H. 319; Derby . Gallup, 5 Minn. 119; Duncan v. Spear, 11 Wend. 54; Vining v. Baker, 53 Me. 544; Burk v. Savage, 13 Allen (Mass.), 408; Burt v. Dutcher, 34 N. Y. 493.

or rushes, and stores them on the ground ready to be carried away, the things so severed from the realty are in the actual possession of the person who has cut them down, and proof that the act of severance has been committed by the plaintiff is sufficient primâ facie evidence of title to enable the plaintiff to maintain an action against another person for seizing them and carrying them away, and the prima facie title cannot be disputed under the plea of not guilty(d). Proof that the plaintiff dug out ore, or sand and gravel, and piled it in heaps on the ground, is prima facie proof that he is entitled to the heaps(e). Proof that the plaintiff is the owner of a vessel taking in cargo is prima facie evidence that the plaintiff is the owner of the cargo(f). If the plaintiff shows that he has a right to the possession of chattels, this will enable him to maintain an action for damages without proof that he has ever had actual possession of them, or that he is the owner of them; for a factor to whom goods have been consigned by the owner for sale, and who has never received them, may maintain an action for the conversion of them(g). There may be a constructive possession of chattels in respect of the right of property being actually vested in the plaintiff. Such is the case in an action of trespass by the lord for an estray or wreck taken by a stranger before seizure by the lord, where the right is in the lord, and a constructive possession in respect of the thing being within the manor of which he is lord. So the executor has the right immediately on the death of the testator, and the right draws after it a constructive possession(h). If trees growing on land demised to a tenant are cut down by the latter, or fixtures attached to a dwelling-house are severed by the tenant, the landlord has an immediate right of possession of the trees and fixtures so severed from the inheritance; they are his goods and chattels, and if they are taken away from the demised premises he may maintain an action for the conversion of them(i).

However, where there was an absolute assignment of goods by deed, with a covenant to pay a certain debt on demand, and a proviso for redemption on payment of the debt, and a further proviso that

(d) Rackham v. Jessup, 3 Wils. 332.

(e) Northam v. Bowden, 11 Exch. 70; 24 Law J. Exch. 238. Rowe v. Brenton, 8 B. & C. 737. (ƒ) Brancker v. Molyneux, 3 M. & Gr. 84.

(g) Eyre, C.J., Fowler v. Down, 1 B. & P. 47.

(h) Smith v. Miles, 1 T. R. 480.

(i) Farrant v. Thompson, 5 B. & Ald. 828. A mortgagor may maintain trover against the mortgagee or his assignee for sale of timber cut on the mortgaged premises after payment of the mortgage. Hutchina v. King, 1 Wall. (U. S.) 53. And the wrongful cutting of timber without carrying it away is a conversion. Sanderson v. Haverstick, 8 Barr, 294.

the assignor should continue in possession until default, and before any default made the goods were taken in execution and sold by the sheriff, it was held that the assignee had not such a right of immediate possession as would entitle him to maintain an action against the sheriff for a conversion of the goods(k).

534 Proof of title of trustees of bankrupts, executors, and nominal parties.In all actions by and against trustees of bankrupts, or executors, or administrators, or persons authorized by statute to sue or be sued as nominal parties, the character in which the plaintiff or defendant is stated on the record to sue or be sued is not in issue unless it is specially denied(). The Bankrupt Act, 32 & 33 Vict. c. 71, s. 10, makes the London Gazette conclusive evidence of the debtor having been duly adjudged a bankrupt, and of the date of the adjudication, in criminal as well as civil proceedings(m). 535 Proof of conversion.-It is necessary for the plaintiff in an action for the conversion of chattels to prove either that the defendant unlawfurly meddled with the plaintiff's goods, and removed them from some place where they had been deposited by the plaintiff, and that the goods had since then been lost to the plaintiff, or that the chattels came to the hands of the defendant wrongfully, or by a tortious taking, or that the defendant has unlawfully exercised dominion over them, to the prejudice of the plaintiff, or that there has been a wrongful destruction of the chattels (ante, p. 396). If the property came lawfully into the possession of the defendant, or under his dominion and control, there must then, as we have seen, be proof of a demand and refusal of the property by a party entitled to make the demand, and have possession of the chattels (ante, pp. 398, 399).

The refusal must, as we have seen, be an absolute refusal, and not a qualified conditional refusal, amounting only to an objection to deliver the goods, until the plaintiff's title to them has been ascertained (ante, p. 400). If the plaintiff complains of the conversion of a bank-note or negotiable security, he must show that the defendant. got the note under circumstances which give him no title to hold the

(k) Bradley v. Copley, 1 C. B. 685.

(7) Reg. Gen. Hil. Term, 1853, 1 Ell. & Bl. App. lxxix.

(m) See R. v. Levi, 34 Law J., M. C. 174. "But the Gazette is not evidence whether the bank. rupt was a trader or not at the time of adjudication; and the trustee, therefore, in a case of dis puted title to goods between him and the execution creditor is not concluded by the Gazette from showing that the bankrupt was in fact a trader at the date of adjudication, although the adjudication was made against him as a non-trader. Revell v. Blake, L. R., 7 C. P. 301.” And see as to proof of proceedings in bankruptcy by production of records sealed with the seal of the court, s. 107.