note as against the plaintiff (ante, pp. 403, 404). Any admission on the part of the defendant that the plaintiff's property had come into his hands, or under his control, and had then been wrongfully dealt with by him, will be evidence of a conversion. Thus, where a defendant, in answer to a demand made upon him by the plaintiff for the delivery of a bill of exchange, said that he could not give it up, because it had been burnt, it was held that this was evidence of a conversion by him of the bill(n). 536 Evidence for the defence.-The defendant cannot, as we have seen, set up any right or title to the subject-matter of the action in answer to a primâ facie case on the part of the plaintiff, unless the right of possession or right of property has been put in issue by the pleadings (ante, p. 450); but he may, as we have seen, under the plea of not guilty, show that he has a lien on the goods, and detains them in the exercise of such right of lien, or that he is joint-owner of the goods with the plaintiff, or has some limited or temporary right or interest in them, and has therefore a right to keep them (ante, pp. 408, 449). When goods have been taken from the actual possession of the plaintiff, and the defendant fails in establishing any title in himself to the property, so as to justify the seizure, he will not be allowed to set up a jus tertii, and deny the plaintiff's title to the goods; for, as against a wrong-doer, possession is title, and the presumption of law is that the possession and ownership of chattels go together, and that presumption cannot be rebutted by evidence that the right of property was in a third person, offered as a defence by one who admits that he had no title and was a wrong-doer when he took or converted the goods(0). A wrong-doer, therefore, in actual possession of goods, the (n) M'Kewen v. Cotching, 27 Law J., C. P. 41. A conversion consists of the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in defiance of the plaintiff's right, or in withholding it under a claim of title. Salt Springs National Bank v. Wheeler, 48 N. Y. 492; 1 Greenl. Ev. s. 542. The accidental loss or destruction of an article by one lawfully in its possession has never been held to be a conversion. Salt Springs National Bank v. Wheeler, 48 N. Y. 492. Cairns v. Bleeker, 12 Johns. 300. Jerves v. Jolliffe, 6 Johns. 9. The refusal by a bailee to give up property upon demand which has been stolen from him, and which is not within his control, is not a conversion nor evidence of a conversion. Buck v. Ashley, 37 Vt. 475. See Robinson v. Hartridge, 13 Florida, 501. So of the accidental loss of goods by a carrier. Dwight v. Benton, 1 Pick. 50. But where the direct wrongful act of the defendant has deprived the plaintiff of the possession of his property, it is immaterial whether the defendant has kept, destroyed or delivered it to a third person. Davis v. Taylor, 41 Ill. 405. (0) Heath v. Milward, 2 Sc. 160; 2 B. N. C. 100. Carter v. Johnson, 2 M. & Rob. 265. Ashmore v. Hardy, 7 C. & P. 505. Bourne v. Fosbrooke, 34 Law J., C. P. 164. Weymouth v. Chicago, etc., R. R. Co., 27 Wis. 550. Harker v. Dement, 9 Gill, 7. Duncan v. Spear, 11 Wend. 54. Hoyt v. Van Alstyne, 15 Barb. 568. Gerber v. Monie, 56 Barb. 652. But see Rotan v. Fletcher, 15 Johns. 207; Schermerhorn v. Van Volkenburgh, 11 Johns. 529; Kennedy v. Strong, 14 Johns. 128; Glenn v. Garrison, 2 Harr. 1; Smoot v. Cook, 8 W. Va. 172. property of another, can recover their value in an action against another wrong-doer who takes the goods from him(p). 537 When the defendant is estopped from disputing the title of the plaintiff. --If the defendant has by deed admitted the title of the plaintiff to the chattels in respect of which the action is brought, he will be estopped from disputing it at the trial(g). If he has accredited the title of some third person to the goods, and so induced the plaintiff to buy from the latter, he will be estopped from setting up any title in himself(). If the owner of goods parts with the possession of them, and knowingly suffers his bailee to deal with the goods as owner, and culpably and negligently stands by and allows a third person to acquire an interest in the goods on the faith and understanding of a fact which he can contradict, and does not contradict, he will be afterwards estopped from disputing the fact in an action against the person whom he has himself assisted in deceiving. Thus, if A, the owner of goods, stands by and permits B to sell them to C, without giving any notice to C, of his being the real owner of the goods, he will be estopped from disputing C's title under the sale(s). Where the plaintiff, in order to protect his personal effects from his creditors, delivered the actual possession of them to the defendant, and, in order that the latter might appear to be the true owner, made a priced invoice of the articles, and gave a receipt to the defendant for the amount as on a sale, it was nevertheless held that the plaintiff, as between himself and the defendant, was not estopped from showing the real character of the transaction, so as to entitle him to recover back the goods from the defendant. Here no deed of transfer had been executed, and the jury found that there was no sale and no intention of transferring the right of property in the things to the defendant. "And," observes Martin, B., "it is perfectly true that if an act be done, the party cannot avail himself of his own fraud to undo it; but here the act is not done, as the jury expressly find there was no sale at all to the defendant," and no transfer whatever of the property in these goods to him(t). 538 Evidence under pleas of justification.—If the defendant has placed a plea of justification on the record, all the material averments of the (p) Jeffries v. Gt. West. Rail. Co., 5 Ell. & Bl. 806; 25 Law J., Q. B. 107. (q) Wiles v. Woodward, 5 Exch. 557. See Kennedy v. Strong, 14 Johns. 128; and see Bar wick v. Wood, 3 Jones' Law (N. C.), 306. (r) Waller v. Drakeford, 1 Ell. & Bl. 753. (8) Gregg v. Wells, 10 Ad. & E. 98. (t) Bowes v. Foster, 2 H. & N. 779; 27 Law J, Exch. 262, plea should be proved. If the defendant justifies the shooting of a dog, on the ground that the animal was hunting and chasing deer in a park, or conies in a rabbit-warren, sheep in a fold, or fowls in a poultry-yard, he must prove that the dog was in hot pursuit at the time he shot it(u). But if a man allows his sheep or his fowls to escape from his own land, and trespass upon his neighbor's property, and they are there attacked and worried by his neighbor's dog, he cannot justify the shooting of the dog in defence of his strayed sheep or fowls. Dogs trespassing in pursuit of animals feræ naturæ cannot lawfully be destroyed. "A dog," observes Lord Ellenborough, "does not incur the penalty of death for running after a hare in another man's ground. And if there be any precedent of that sort which outrages all reason and common sense, it is of no authority to govern other cases. A gamekeeper has no right to kill a dog for following game "(x), although the owner of the dog has received notice that trespassing dogs will be shot(y). But a dog chasing and pursuing game in a preserve might, it is apprehended, be shot, if the game could not otherwise be saved from destruction (z.) 539 Of the assessment of damages. Whenever the chattels of one man have been wrongfully seized by another, who has assumed a virtual dominion over them, substantial damages are recoverable, although no pecuniary damage can be proved to have been sustained. Where, therefore, the defendant wrongfully seized the plaintiff's horse and cart, and placed a man to keep possession of them, who allowed the plaintiff the free use of the cart, which was driven to market every day, it was held that the plaintiff was nevertheless entitled to recover substantial damages in respect of the infringement of his proprietary rights(a). In actions for the conversion of chattels, the full value of the chattels at the time of the conversion is the measure of the damages, where no special damage has been sustained, and the goods have not been tendered and received back after action(b). By the recovery of the (u) Barrington v. Turner, 3 Lev. 28. Protheroe v. Mathews, 5 C. & P. 586. Wadhurst v. Damme, Cro. Jac. 45. Wells v. Head, 4 C. & P. 568. Janson v. Brown, 1 Campb. 41. (x) Vere v. Ld. Cawdor, 11 East, 569. (y) Corner v. Champneys, cited 2 Marsh. 584. (z) Read v. Edwards, ante, p. 30. (a) Bayliss v. Fisher, 7 Bing. 153. (b) Wood v. Morewood, 3 Q. B. 440, n. Finch v. Blount, 7 C. & P. 478. Alsager v. Close, 10 M. & W. 584. Ewbank v. Nutting, 7 C. B. 809. Edmondson v. Nuttall, 17 C. B., N. S. 280; 34 Law J., C. P. 102. The rule as to the measure of damages in actions of trover cannot be said to be uniformly settled in this country, nor would the adoption of the rule stated in the judgment the ownership of the converted property is transferred, as we have seen, from the plaintiff to the defendant, and the plaintiff holds the damages as the price of the goods he has lost (ante, p. 360); he is therefore entitled to their full marketable value where he does not consent to receive them back. If the chattel is of such a nature that the loss of it may readily be supplied by the purchase of a similar chattel in the market, the damage will be the marketable value of the chattel at the time of the conversion. If the value of it is doubtful, every presumption is made against the wrong-doer. Where a boy having found a jewel set in a socket took it to a jeweller's to know what it was worth, and the jeweller took the jewel out of the socket to examine it, and then refused to deliver it up, and the boy brought an action for the conversion of the jewel, "several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth, and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages, which they did "(c). Sanders v. Vance, 7 Monr. 209. text tend in any considerable degree to harmonize the conflicting decisions, and furnish a uniform measure of damages. It is undoubtedly the general rule that the measure of the plaintiff's damages in an action of trover is the value of the property at the time of the conversion and interest thereon from the time of the conversion up to the rendition of the verdict. Ryburn v. Pryor, 14 Ark. 505. Clark v. Whitaker, 19 Conn. 319. Burney v. Pledger, 3 Rich. 191. Kennedy v. Whitwell, 4 Pick. 466. Watt v. Potter, 2 Mason, 77. Lillord Whitaker, 3 Bibb, 92. Weld v. Oliver, 21 Pick. 559. Greenfield Bank v. Leavitt, 17 Pick 1. Johnson v. Sumner, 1 Met. 172. Baldwin v. Munro, Anthon, 156. Ellis v. Woie, 33 Ind. 127. Hamer v. Hatheway, 33 Cal. 117. Crumb v. Oaks, 38 Vt. 566. Brown v. Haynes, 52 Me. 578. Robinson v. Barrows, 48 Me. 186. Commercial Bank v. Jones, 18 Texas, 811. Hurd v. Hubbell, 26 Conn. 389. Cook v. Loomis, 26 Conn. 483. Polk v. Allen, 19 Mo. 467. Funk v Dillon, 21 Mo. 294. Robinson v. Hartridge, 13 Florida, 501. But the time of conversion is not always fixed by the same circumstances. Thus, a tortious taking is sufficient proof of a conversion, but it has been held in many cases that the plaintif may elect to consider the property as still his own and treat a sale of it by the wrong-doer, or a refusal to deliver it on demand, as the conversion. So, it has been held, that the law will, upon the principle of natural justice, that a wrong-doer ought not to be allowed to make a profit by his own wilful tort, treat the conversion of property of fluctuating value as occurring at such time between the taking and the trial as the property bears the highest price in the market. Ellis v. Woie, 33 Ind. 127. Burt v. Dutcher, 34 N. Y. 493. Romaine v. Van Allen, 26 N. Y. 309. Markham v. Jandon, 41 N. Y. 235. Scott v. Rogers, 31 N. Y. 678. But this rule, although supported by numerous well considered decisions, has recently been repudiated as a universal rule in New York and other States, and its propriety and soundness questioned when applied to cases not special and exceptional. Matthews v. Coe, 49 N. Y. 57. Baker v. Drake, 53 N. Y. 211. In the latter case it was held that the rule of damages in civil actions does not depend upon the form of the action; and whether it be in contract or in tort, the proper measure of damages, except where punitive damages are allowable, is a just Indemnity to the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of, and which a proper degree of prudence on the part of the complainant would not have averted. (c) Armory v. Delamire, 1 Str. 504. Where goods of the plaintiff had been deposited in the hands of the defendant for manufacturing purposes, and, the plaintiff being indebted to the defendant, the latter sued him in the county court and recovered judgment for the debt, but before he could lawfully issue execution the plaintiff demanded his goods, which the defendant refused to deliver, and subsequently the defendant caused the goods in his hands to be seized and sold under the execution, and the plaintiff brought his action for the conversion of the goods, it was held that he was entitled to recover their full value, for there is nothing unlawful in a man withdrawing his goods for the purpose of avoiding an execution; and, as by the result of the action in the superior court, the property becomes the defendant's who has thus seized his own goods in execution, his claim against the plaintiff pro tanto is not satisfied, and he must resort to the county court to issue fresh execution(d). If an action is brought for the shooting of a dog, the character and propensities of the animal for mischief may be considered in mitigation of damages(e). If a jury arrive at the conclusion that a defendant has come dishonestly by a part of property which has been stolen, they are warranted in finding that he got possession of the whole. Thus, where a diamond necklace worth 500l. had been stolen, and a portion of the diamonds shortly after the robbery, came into the defendant's possession, and the latter gave contradictory and unsatisfactory accounts as to the mode in which he became possessed of them, and the owner sued and recovered a verdict for the full value of the necklace, it was held that the jury were justified in finding that the whole necklace came into the defendant's hands(ƒ). The plaintiff is entitled, under a declaration properly framed, to recover all that at the commencement of the suit he has lost through the wrongful seizure of his goods, and it has even been held that the defendant cannot, in mitigation of damages, show that after action brought he paid to plaintiff the value of the goods(g). The jury are not limited in assessing the damages to the price or value of the article on the day of the conversion, but may give the value at any subsequent time at their discretion, as the plaintiff might have had a good (d) Edmondson v. Nuttall, supra. (e) Wells v. Head, 4 C. & P. 568. (ƒ) Mortimer v. Cradock, 12 Law J., C. P. 166. (g) Rundle v. Little, 6 Q. B. 178. But see post, p. 362. |