Again, in other cases trespass may be proper when trover cannot be sustained; as, where the ferryman wrongfully put the horses of a passenger out of a boat without farther intent concerning them, it may be a trespass, but it is not a conversion, for he did not interfere with the owner's dominion over the property nor alter its condition. If he had made any farther disposition of them inconsistent with the owner's right, it would have been a conversion. Whenever trespass de bonis asportatis lies, trover will lie. Trover lies also when there was no unlawful taking or entry, as in the case of finding, but to support trespass the taking or entry must have been unlawful. Although, as in detinue, trover is brought in relation to a chattel, yet it differs from that action in this, that in detinue the suit is brought to recover the chattel itself, while in trover it is instituted to recover damages for the loss sustained by the plaintiff in consequence of the conversion of the chattel by the defendant. Again, in detinue at common law the defendant was allowed to wage his law, which he could not do in trover, and this circumstance alone brought this action into more general use. 3516. The action of trover and conversion, or, as it is more simply called, the action of trover, is a remedy given by law to recover personal property wrongfully converted by another to his own use. It is called trover from the French trouver, which signifies to find, but as it may be brought for any chattel converted by the defendant to his own use, in its form trover is a mere fiction. The form supposes the defendant might have come lawfully by the possession of the chattel, and if he did not, yet, by bringing this action, the plaintiff waives the trespass; no damages are recovered for the act of taking, all must be for converting. This is the tort or maleficium, and to entitle the plaintiff to recover two things are necessary: first, property in the plaintiff; second, a wrongful conversion by the defendant. This subject will be considered with reference to the thing converted, the plaintiff's right, the nature of the injury, the pleadings, the evidence, and the verdict and judgment. 3517. The property which is the subject of an action of trover must be a personal chattel, but what is to be so considered is the question. This action will lie for manure lying upon the ground and not incorporated with the soil;" and though the ordinary manure of a farm is a part of the freehold, yet the carrying it off to other premises is a severing, so that for a subsequent sale by the wrong-doer trover will lie; for after severance from the freehold, as in the case of trees, if the property severed be taken away, or if coals in a pit be afterward thrown out, trover may be supported.10 Trover lies for title 8 Fouldes v. Willoughby, 8 Mees. & W. Exch. 540. Prescott v. Wright, 6 Mass. 20; Pierce v. Benjamin, 14 Pick. Mass. 356; Glenn. v. Garrison, 2 Harr. Del. 1. Norris v. Beckley, 2 Const. So. C. 228. 5 Glaze v. McMillan, 16 Ala. 279; Taylor v. Howell, 4 Blackf. Ind. 217; Hall v. Amos, 5 T. B. Monr. Ky. 89. Mather v. Trinity Church, 3 Serg. & R. Penn. 512, 513; Fleming v. Bevan, 2 Penn. St. 408. To maintain trover there must be either, 1, an unlawful taking of personal property from the owner without his consent; 2, an assumption of ownership of such property; 3, an illegal use or abuse of it; or, 4, proof of demand and refusal. Kennet v. Robinson, 2 J. J. Marsh. Ky. 84; Glaze v. McMillan, 16 Ala. 279; St. John v. O'Connell, 18 Ala. 466. 'Pinkham v. Gear, 3 N. H. 484. 8 Stone v. Proctor, 2 N. Chipm. Vt. 116. See Sanderson v. Haverstick, 8 Penn. St. 294. 10 Comyn, Dig. Biens, H; Bacon, Abr. Trover, B. Where the defendant enters upon the land of the plaintiff and severs crops or coal from the realty, the injury is in the first place a trespass. But the property in the corn, coal, etc., still remains in the plaintiff, and if the defendant carries them off, the plaintiff may waive the trespass and sue in trover. Nelson v. Burt, 15 Mass. 204; Forsyth v. Wells, 41 Penn. St. 291; Sampson v. Hammond, 4 Cal. 184; Riddle v. Driver, 12 Ala. 590. 385 VOL. II.-2 Y 17 15 deeds," for a negotiable instrument, certificates of stock, a promissory note,12 a note which has been paid and left in the hands of the holder by mistake,13 or bank notes sealed in a letter," or the copy of an account.' It may be supported for a copy of a record which is private property, and may therefore be converted,16 though in general it will not lie for a record which is public property; trover may be sustained for animals feræ naturæ reclaimed;18 as, wild geese which have strayed away without regaining their natural liberty.19 It is the proper remedy, in general, for the conversion of any sort of personal property which is specific in its nature and which can be described in the declaration; thus it will not lie for money had and received generally, because it is an attempt to convert an action of assumpsit into an action of tort,20 yet it lies for coin described as such, though not in a bag or otherwise distinguishable from other coin, because the thing itself is not to be recovered in this action, but damages for the conversion.21 22 3518. But certain property cannot be recovered in trover owing to its being in the custody of the law, as when it has been seized by virtue of some valid legal process, nor when the title to the property can be settled only by a peculiar jurisdiction; as, for example, property taken on the high seas and claimed as lawful prize, because in such cases the courts of admiralty have exclusive jurisdiction.23 Nor will it lie where the property bailed has been lost by the bailee, or stolen from him, or destroyed by accident, or from negligence; for such torts case is the proper remedy." But an officer seizing property on a void process is liable in trover; the only question that can arise is as to the validity of the process. The validity of the judgment upon which the process is founded is immaterial as affecting the officer.25 If a mortgagee of chattels with a right to take possession and sell upon default of payment do so after the death of the mortgagor, he is liable in trover to the administrator, for upon the death the chattels, being in possession of the mortgagor, pass into the custody of the law.26 A lessee who puts a building on the leased premises with the privilege of removal at the end of the term may maintain trover against his lessor, if he prevents him from removing it. Dame v. Dame, 38 N. H. 429; Adams v. Goddard, 48 Me. 212. 11 Weiser v. Seisinger, 2 Yeates, Penn. 537; Towle v. Lovet, 6 Mass. 394. 12 Comparet v. Burr, 5 Blackf. Ind. 419; Todd v. Crookshanks, 3 Johns. N. Y. 432; Kingman v. Pierce, 17 Mass. 247; Day v. Whitney, 1 Pick. Mass. 503; Jarvis v. Rogers, 15 Mass. 389; Sewall v. The Lancaster Bank, 17 Serg. & R. Penn. 285; Wininger v. Banning, 7 Minn. 274. 13 Pierce v. Gilson, 9 Vt. 216; See Bisherer v. Swisher, 2 Penn. 748; Stone v. Clough, 41 N. H. 290. 14 Moody v. Keener, 16 Ala. 218. 15 Fullam v. Cummings, 16 Vt. 697. 16 Jones v. Winckworth, Hardr. 111. 17 1 Chitty, Pl. 150. But it seems that an action of trover or replevin may be maintained in Massachusetts for the recovery of parish records. Sawyer v. Baldwin, 11 Pick. Mass. 492; Stebbins v. Jennings, 10 Pick. Mass. 172. 18 Hughes, Abr. Action upon the Case of Trover and Conversion, pl. 3. 19 Amory v. Flyn, 10 Johns. N. Y. 102. 20 Orton v. Butler, 5 Barnew. & Ald. 652. 21 Bacon, Abr. Trover, D; Viner, Abr. Action of Trover, E. See Pettit v. Bouju, 1 Mo. 64; Graves v. Dudley, 20 N. Y. 76. 22 Jenner v. Joliffe, 9 Johns. N. Y. 381; Pettigru v. Sanders, 2 Bail. So. C. 549; but see Hall v. Moore, Add. Penn. 376. 23 Maissonnaire v. Keating, 2 Gall. C. C. 325; but see Miller v. The Resolution, 2 Dall. 1. 24 Hawkins v. Hoffman, 6 Hill, N. Y. 586; Packard v. Getman, 4 Wend. N. Y. 613; Johnson v. Stradder, 3 Mo. 359; Moses v. Norris, 4 N. H. 304. 25 Before, 3373. Martin v. England, 5 71; McFarland v. Farmer, 42 N. H. 386. 26 Kater v. Steinruck, 40 Penn. St. 501. Yerg. Tenn. 313; Thompson v. Rose, 16 Conn. A public officer who improperly takes goods under color of his office is liable in trover; as, a postmaster who refuses to deliver a letter, or a collector of customs who unlawfully detains goods.27 28 3519. To entitle the plaintiff to recover in this action, at the time of the conversion he must have had a property in the chattel, either general or special," and also actual possession or right of immediate possession.29 The rights of the plaintiff consist in having a general or absolute property, a special property, a bare possession, a right to immediate and exclusive possession. 31 3520. The person who has the absolute or general property of a personal chattel may support this action, although he has never had actual possession, because the general property in personal chattels creates a constructive possession; that is, the right to the chattel draws to it the possession.30 Thus, when the general owner bailed the goods, as to a carrier, or lent them to a party, the bailee has no special property or interest in them against the general owner; it follows that the latter is entitled to immediate possession, and he may therefore maintain trover against a stranger.32 Again, a remainder-man who never had possession of the chattel may bring trover for plate pledged by the party who had the life interest in such plate, which by his death has become vested absolutely in the remainder-man, even though the pawnee was not aware that the pawner was only a tenant for life.33 When the goods have been delivered on a void agreement or the contract has been rescinded, the former owner may maintain trover against the other contracting party, because no property in the goods passes to the vendee or bailee; and so, when property is parted with by duress of imprisonment or duress per minas, the transaction is void, and trover lies for the property without a demand.34 It is a general rule that a sale of stolen goods made by the thief does not pass any title to the vendee, but on account of public policy the owner is not allowed at common law to bring a civil action for the recovery of his property until after he has prosecuted the thief, and though his right is not destroyed, it is suspended; 35 but if the goods be pawned to another, the pawnee acquires no title, and trover may be maintained against him. And if the goods have been sent to an auctioneer to sell, an action of trover may be maintained against him, although he sold them innocently, not knowing that they were stolen.36 3521. A person having a special property in goods or personal chattels may bring trover against a stranger who takes them out of his possession, as a borrower, a hirer, a factor, consignee, pawnee, or other bailee, or a sheriff, or trustee, or agister of cattle, or any other person responsible to his principal.37 But a mere servant cannot support this action because his possession is that of his 27 Fiedler v. Maxwell, 2 Blatchf. C. C. 552. 28 Yoner v. Neidig, 1 Yeates, Penn. 19; Hastler v. Skull, 1 Tayl. No. C. 152. 29 Mather v. Trinity Church, 3 Serg. & R. Penn. 312; Fleming v. Bevan, 2 Penn. St. 408. 30 Wilbraham v. Snow, 2 Saund, 47, a, note 1; Bacon, Abr. Trover, C; Wininger v. Banning, 7 Minn. 274. 31 Wilbraham v. Snow, 2 Saund. 47, b. 33 Hoare v. Parker, 2 Term, 376. 35 Hutchinson v. Bank of Wheeling, 41 Penn. St. 42. In some of the states the right is given to an owner by statute to bring a civil action before he prosecutes the thief. Trover will lie although the defendant may be acquitted of the felonious taking of the goods. Crosby v. Leng, 12 East, 409. 36 Hoffman v. Carow, 22 Wend. N. Y. 285. 37 Wilbraham v. Snow, 2 Saund. 47, b; Stirling v. Vaughan, 11 East, 626; Coleson v. Blanton, 3 Hayw. Tenn. 152; Betts v. Mouser, Wright, Ch. Ohio, 744; Polley v. Lenox Iron Works, 4 Åll. Mass. 329. 38 master, and he has, therefore, no special property; nor can a party who has a mere right of custody maintain this action. Thus, parish officers cannot recover in trover from an ex-warden the books kept by him while in office; the remedy is by mandamus.39 Though, in general, a bailee or other person having only a special property in the chattels must have had possession before he can maintain trover, yet it seems that one having only the right of possession may support it. Thus, it has been held that the indorsee of a bill of lading indorsed to him without value, and for the express purpose of stopping goods in transitu, may maintain trover against a wharfinger who converted them.40 The rights of one who has a special property in the goods may be adverse to the general owner; as, if the party having a special interest deliver a chattel to the general owner for a particular purpose, he may, on the refusal of the owner to return it, the purpose being satisfied, maintain trover." 41 3522. A man who has the bare possession alone, and loses it by the act of a wrong-doer, is entitled to this action against the latter, because possession is prima facie evidence of property; but such possession does not hold good against the true owner, because as soon as he appears the rights of the mere possessor cease. A finder of a chattel may maintain trover against a stranger who wrongfully detains it from him.2 And for the same reason a lessee, in the enjoyment under the lease as against a wrong-doer, may maintain trover against a stranger without proving the title of the lessor, relying upon his own possession.43 It has been held that one who is wrongfully in possession of land, under a claim of right, may maintain trover against the rightful owner for turpentine gathered by the claimant off the land, and taken by the owner." A fraudulent title, though coupled with possession, will not support the action. 3523. Although the plaintiff may have a property in the thing which is the subject of the action, if he have not the right to immediate possession, he cannot maintain trover; for example, a reversioner cannot maintain this action; his remedy is by an action on the case. Upon the same principle, the purchaser of a chattel, although by the sale he acquires a right to it, yet does not become entitled to the possession until he has paid the price, and until such time he cannot maintain trover. Nor can a cestui que trust maintain this action, while the legal right or title is in another.47 46 3524. The plaintiff must have not only the right to immediate possession, but the exclusive right of possession to the chattels claimed. He must therefore have a right to the specific chattel for which he brings this action. If, therefore, a man buy goods undivided from the bulk, as one hundred bushels of wheat, to be measured out of a heap of one thousand bushels, he cannot maintain this action for any specific wheat, because it cannot be told which was his se Bloss v. Holman, Ow. 52. 39 Addison v. Round, 6 Nev. & M. 422. 40 Waring v. Cox, 1 Campb. 369; Wilbraham v. Snow, 2 Saund. 47, d. A mortgagee of goods not in possession cannot maintain trover against a creditor of the mortgagor levying on them. Goulet v. Asseler, 22 N. Y. 225; but see Chadwick v. Lamb, 29 Barb. N. Y. 518. 41 2 Taunt. 268. 42 Amory v. Delamire, 1 Strange, 505; Wilbraham v. Snow, 2 Saund. 47, d; Clark v. Malory, 3 Harr. Del. 68; Cook v. Patterson, 35 Ala. N. s. 102. 43 Taylor v. Parry, 1 Scott, N. R. 576; 1 Mann. & G. 604. *Branch v. Campbell, 7 Jones, No. C. 378. 45 Mulligan v. Bailey, 28 Ga. 507; Hartshorn v. Williams, 31 Ala. N. s. 149. 46 Woodcock v. Farrell, 1 Metc. Ky. 437. 47 Laspeyre v. McFarland, 2 Tayl. No. C. 187; Kier v. Peterson, 41 Penn. St. 457; Howard v. Snelling, 28 Ga. 469. 48 until it has been measured and set aside; or in the case of a manufactured article, if it be not specifically appropriated to the vendee, he has no such property as will support trover. 19 For a similar reason a tenant in common, or joint tenant, cannot maintain trover against his co-tenant while he remains in possession of the goods, though he denies the use of them to the other, because the possession of the one is the possession of the other.50 But if the thing in common be destroyed or sold by one tenant in common, this will amount to a severance of the joint interest, and trover lies.51 3525. The injury called a conversion consists, in the sense it is used in relation to trover, either in the appropriation of the personal property in question to the party's own use and benefit, or in its destruction, or in exercising dominion over it, in exclusion of the rights of the owner or lawful possessor, or in withholding the possession from him under a claim of title inconsistent with his own.52 The fact of conversion may be shown in three ways: by proof of the wrongful taking of the goods of another, the wrongful assumption of the property in them, and the right of disposing of them, and the wrongful detention of them after demand. It may be laid down as a general rule that no demand is necessary where the taking is unlawful, or where the acts of the defendant have rendered a demand useless; as, where he has used up the property or parted with it by sale.53 3526. The wrongful taking of the goods of another, who has the right of immediate possession, with intent to apply them to the use of the taker, or of some other person than the owner, or which has the effect of destroying or altering their nature, is a conversion. But if there is no intent to interfere with the owner's dominion, or to change the condition of the property so taken, the trespass will not be considered a conversion; thus the mere turning horses out of a ferry-boat wrongfully is not a conversion of them. Drawing a portion of liquor out of a barrel, and filling it up with water, is a conversion of the whole, because it changes its nature.56 One who buys goods of a person having no title, is guilty of a conversion if he takes them after notice of the true owner, and no demand is necessary; 57 Abington v. Lapscombe, 1 Gale & D. 230. 50 White v. Osborn, 21 Wend. N. Y. 72; Hyde v. Stone, 7 Wend. N. Y. 354; Herrin v. Heaton, 13 Me. 193; Weld v. Oliver, 21 Pick. Mass. 559; Newlin ». Colt, 6 Hill, N. Y. 461; 2 Saund, 47, f and g; Fennings v. Grenville, 1 Taunt. 241; Heath v. Hubbard, 4 East, 121; Carr v. Dodge, 40 N. H. 403; Williams v. Nolen, 34 Ala. N. s. 167. 51 White v. Brooks, 43 N. H. 402; Boyle v. Levings, 28 Ill. 314. 52 Shipwick v. Blanchard, 6 Term, 299, arguendo; Foulkes v. Willoughby, 8 Mees. & W. Exch. 540, 546, 551; Hutchinson v. Bobo, 1 Bail. So. C. 546; Reid v. Colcock, 1 Nott & M'C. So. C. 592; Reynolds v. Schuler, 5 Cow. N. Y. 323. 63 Dudley v. Sawyer, 41 N. H. 326. 54 2 Saund. 47, g; Thurston v. Blanchard, 22 Pick. Mass. 18; Durell v. Mosher, 8 Johns. N. Y. 445; Shipwick v. Blanchard, 6 Term, 299; Davis v. Waleb, 1 M'Cord, So. C. 213; Jones v. Duncan, 1 M'Cord, So. C. 428; Farrington v. Payne, 15 Johns. N. Y. 431; Woodbury v. Long, 8 Pick. Mass. 543. 65 Foulkes v. Willoughby, 8 Mees. & W. Exch. 540; Plumer v. Brown, 8 Metc. Mass. 578. According to these decisions, the ancient rule of law laid down in 1 Chitty, Pl. 152; Bacon, Abr. Trover, A; 2 Wms. Saund. 47, note (o); and the works of other writers, that "whenever trespass for taking goods will lie, trover will also lie," cannot be supported. 561 Strange, 576; Dench v. Walker, 14 Mass. 500; see Young v. Mason, 8 Pick. Mass. 551. 57 Scriber v. Masten, 11 Cal. 303; Paige v. O'Neal, 12 Cal. 483; Thrall v. Lathrop, 30 Vt. 307. |