3540. In considering the declaration it will be proper to inquire what are the requisites of a declaration in trover, and what defects in it are cured by a verdict in favor of the plaintiff.

3541. The requisites of a declaration are, the statement of the cause of action; the proper averments; and the claim for damages.

3542. The declaration should state that the plaintiff was lawfully possessed of certain goods and chattels, which he should describe as particularly as possible, avoiding repetition and unnecessary description of details, as of his own property, of a certain value which should be mentioned, and that being so possessed, he, on a certain day, which should be specified, casually lost the said goods and chattels out of his possession, and that afterward, on the day and year aforesaid, at the county aforesaid, they came to the possession of the defendant by finding.

"108

The certainty in the description of the thing lost must be such as to identify it, but certainty to a common intent is all that is required. 107 Where the property was described as "a black mare of the value of one hundred dollars; or that "the plaintiff being owner, and in possession of a pair of oxen of the value of one hundred dollars, lost the same, and that the same were found by the defendant;"109 or "old iron;"110 or "fifty pieces or ends of deal boards;" in all these cases the description was held to be sufficiently certain. But where the description is so general that the articles cannot be identified, it is bad for uncertainty; the following are examples: where the goods were described as one hundred articles of furniture, and one hundred articles of wearing apparel," without further description; 112 or "two sheaves of corn," without stating the kind; 113 or of "some fish," without stating the quality or number of fish. In these cases the description was deemed too loose and uncertain to identify the property, though in some of them the defects might be cured by verdict.

In the description of promissory notes, bills of exchange, bonds, and the like, they should be so stated that they may be readily identified; but the plaintiff is not required to state their dates or time of payment, because he has them not in his possession; 115 nor is he required to recite any part of the instrument. 116

The price or value of the thing lost ought to be stated in the declaration; yet, if it should be omitted, it will not be fatal." The defect can be reached only by special demurrer.118

A time should also be mentioned, but provided it is before action brought, it is immaterial.119

107 Vanhauken v. Wickam, 2 South. N. J. 509; Taylor v. Morgan, 3 Watts, Penn. 333. 108 Hedley v. Fullen, 1 Blackf. Ind. 51.

109 Vanhauken v. Wickam, 2 South. N. J. 509.

110 Talbot v. Spears, Willes, 70.

111

Knight v. Baker, 11 Mod. 66; Haslegrave v. Thompson, Strange, 810. The practice of annexing a schedule of the things lost to the declaration has been disapproved of as being improper. Kinder v. Shaw, 2 Mass. 398; Rider v. Robbins, 13 Mass. 284.

112 Bacon, Abr. Trover, F.

114 Playter's Case, 5 Coke 34.

113 Anon. Style, 25.

115 Bank of New Brunswick v. Neillson, 3 Green, N. J. 337; Wilson v. Chambers, Croke, Jac. 262.

116 Pierson v. Townsend, 2 Hill, N. Y. 550.

117 Pearpoint v. Henry, 2 Wash. Va. 192. It is said, in an old authority, that if an action of trover be brought for a living chattel, it must be stated in the declaration to be of a certain price; and if for a dead chattel, of a certain value. Wood v. Smith, Croke, Jac. 130; but elsewhere it is said there is no difference in these terms in a declaration. Fitzherbert, Nat. Brev. 88. See before, 2873, note.

118 Fry v. Baxter, 10 Mo. 302.

119 Glenn v. Garrison, 2 Harr. Del. 1; Tesmond v. Johnson, Croke, Jac. 428.

It is not necessary in trover to lay the venue at the place where the conversion was, but some place should be alleged.120

The finding should be stated, but the omission of these words is not material after verdict; and the finding is not traversable; 121 and to state that the goods came to the possession of the defendant "by finding or otherwise" will not vitiate the declaration.122

3543. The averment should be that the defendant well knowing that the said goods and chattels were the property of the plaintiff, and of right to belong and appertain to him, but contriving, and fraudulently intending, craftily and subtlely, to deceive and defraud the plaintiff in this behalf, has not yet delivered the said goods and chattels to the said plaintiff, although often requested so to do, but has hitherto refused and still refuses so to do; and afterward, at a certain time mentioned, in the said county, converted and disposed of the said goods and chattels to his the defendant's own use.123 Thus, in an action styled an action of trespass, where the declaration charged "that the defendant took in his possession certain goods and chattels, the property of the plaintiff, that he refused, and still refuses, to deliver them to the plaintiff, though requested, and has converted them to his own use," is a sufficient averment, and sets out a case of trover.124 It must be averred that the plaintiff is entitled to possession.125

3544. The declaration should lay the damages in such sufficient sum as to cover the value of the article, and such other injury as the plaintiff may have sustained.

66

Damages must be alleged or the judgment cannot be supported; 126 alleging to the great damage" is enough without stating the amount.127

3545. In general, all merely formal defects in a declaration are cured by verdict, when in favor of the plaintiff; these must be taken advantage of by special demurrer. It is for this reason that, although possession and the right of property should be in the plaintiff, it has been held that this defect was cured by the verdict for the plaintiff; 129 and where a declaration, good in other respects, misstated the name of the defendant for that of the plaintiff, it was held that the mistake could be taken advantage of only by special demurrer; and if there was a judgment by default, a special demurrer would not be allowed, except on the condition of pleading issuably.129

3546. It is usual in trover to plead the general issue of not guilty, under which many matters in discharge may be given in evidence. But it is necessary to plead the statute of limitations and a release. The defendant may, however, plead specially any thing which admits the property in the plaintiff, and the conversion, but justifies the latter.130 He may also plead a former recovery of damages given in an action of trespass for the same trespass or conversion.131

In general, a plea amounting to the general issue in trover is bad; as, a plea that the goods were sold pursuant to the order of the plaintiff; 132 or a plea al

125 Dearman v. Dearman, 5 Ala. N. s. 202; see Davis v. Davis, 6 Blackf. Ind. 394.

126 Sterling v. Garritee, 18 Md. 468.

128 Good v. Harnish, 13 Serg. & R. Penn. 99.

129 McLure v. Vernon, 2 Hill, So. C. 420.

127

Mattingly v. Darwin, 23 Ill. 618.

130 Hurst v. Cook, 19 Wend. N. Y. 463; Coffin v. Anderson, 4 Blackf. Ind. 395.

181 Sanders v. Egerton, 2 Brev. So. C. 45.

182 Kennedy v. Strong, 10 Johns. N. Y. 289.

leging property in the plaintiff, and that the goods were taken as a distress for rent.133

3547. Two principal points must be proved by the plaintiff in order to sustain this action: property in himself and a right of possession at the time of the conversion, and a conversion by the defendant of the thing sued for before action brought.

3548. The plaintiff is required to' show either a general and absolute or a special property in himself; the latter, when the party is entitled to possession, is sufficient to recover even against the owner himself.134

When the plaintiff claims title under a sale made to him, he must show that the sale was completed before the conversion and that he was entitled to possession; for if his right was liable to be defeated by stoppage in transitu, and the right of the seller was exercised, the buyer cannot recover the property sold in an action of trover.

When an article is to be manufactured, as, for example, a ship, upon a special contract, and the price is to be paid in certain portions or instalments as the work progresses, the payment of the instalments as they fall due vests the property of the ship in the buyer; 135 but if the contract is general, without any express stipulations for advances, payments on account will not thus vest the property in the party who makes them.136

The possession, acquired bona fide and for a valuable consideration, of a bank note, bill of exchange, or promissory note when indorsed in blank or payable to the holder, or a government bond, payable to the holder, or other negotiable security so payable or indorsed, is sufficient evidence of title without showing any title in the person from whom he received it.137

The property sued for must of course be identified, for without this the plaintiff cannot show his title to it. Where the plaintiff declared for a bond, it was held he might call the obligor to prove its contents.138

3549. After having proved his property in the chattel which is the subject of the action, the plaintiff must show his right to present possession and that he had such a right at the time of the conversion. If the plaintiff has only a special property, he must in general give evidence of actual possession,139 for possession in trover is prima facie evidence of ownership; 140 and when the defendant has color of title, the plaintiff must not only show possession in himself, but a title to the property.' When the plaintiff has a general property in the goods, the law annexes the possession.142

141

3550. The plaintiff must also show that there has been a conversion of the goods by which he sustained an injury, for he cannot recover any damages if the chattel was of no value.143 What will amount to a conversion has already been sufficiently considered.

133 Briggs v. Brown, 3 Hill, N. Y. 87.

134 Roberts v. Wyatt, 2 Taunt. 268; Spoor v. Holland, 8 Wend. N. Y. 445.

135 Woods v. Russell, 5 Barnew. & Ald. 942, 946; see Johnson v. Hunt, 11 Wend. N. Y. 137.

136 See Mucklow v. Mangles, 1 Taunt. 318; Bishop v. Crawshay, 3 Barnew. & C. 416; Goode v. Langley, 7 Barnew. & C. 26.

137 2 Greenleaf, Ev. ? 639; Story, Bills, 415; Story, Notes, 2 193-197; 2 Phillipps, Ev. 222.

138 Smith v. Robertson, 4 Harr. & J. Md. 30.

139 Coxe v. Harden, 4 East, 211; Dennie v. Harris, 9 Pick. Mass. 361; Hotchkiss v. McVickar, 12 Johns. N. Y. 407; Sheldon v. Soper, 14 Johns. N. Y. 352.

140 Jones v. Sinclair, 2 N. H. 319; Derby v. Gallup, 5 Minn. 119. But it is not conclusive. Stephenson v. Little, 10 Mich. 433.

141 Fightmaster v. Beasly, 7 J. J. Marsh. Ky. 410.

142 2 Saund. 47, a, note (1).

143 Miller v. Reigne, 2 Hill, So. C. 592.

3551. Under the general issue of not guilty the defendant may, in general, show by any competent evidence that the title of the goods was in himself either absolutely as general owner, or joint owner with the plaintiff, or specially as bailee; or that he had a right to retain on account of his lien; or that he took the goods for a just cause, as, for rent in arrear; 15 or he may disprove the plaintiff's title by showing title in a stranger; 146 but he cannot set up the interest of such third person without showing a title of some kind in himself.147 He may prove facts showing a license, or a subsequent ratification, or any other facts which support his special plea.

3552. The verdict is rendered for the damages which the plaintiff has sustained in consequence of the conversion of his goods by the defendant. As a general rule, damages are allowed for the value of the property at the time of the conversion, with interest.148 But a difficulty arises in ascertaining what is the property which has been converted, whether it is what was actually taken from the plaintiff or that article improved by the work and industry of the defendant. It is a general rule that a wrong-doer can never benefit by his own wrong; and as it would be extremely difficult to ascertain the value of the original property without his labor, the whole shall be considered as the property of the plaintiff, and he will be entitled to damages accordingly; as, where the defendant took logs of the plaintiff and converted them into boards, the plaintiff may recover the value of the boards, and the verdict should be for that amount.149 Where other losses besides the value of the property have been sustained, the plaintiff is entitled to recover damages for such injury, and the verdict should, therefore, include an amount sufficient to indemnify him; as, where the defendant converted a slave, the verdict should be for the value of the slave and for his labor.150 The defendant cannot, however, recover damages for a greater injury than he has sustained; thus, where the plaintiff had a life estate in a slave, he can recover only the value of the life interest.151

The plaintiff cannot recover for the loss of anticipated profits which he might have made but for the conversion by the defendant.152

When the subject is a written security, the verdict should be for the amount of the principal and the interest due upon it.153 If trover is brought for promissory notes signed by third parties, the jury are entitled to consider the circumstances affecting the solvency of the maker, and to estimate the market

14 Buller, Nisi P. 45; Skinner v. Upshaw, 2 Ld. Raym. 752.

145 Wallace v. King, 1 H. Blackst. 13; Kline v. Husted, 3 Caines, N. Y. 275.

146 Schermerhorn v. Van Volkenburgh, 11 Johns. N. Y. 529; Rotan v. Fletcher, 15 Johns. N. Y. 207.

147 Duncan v. Spear, 11 Wend. N. Y. 54.

148 Matthews v. Menedger, 2 McLean, C. C. 145; Ewart v. Kerr, 2 McMull. So. C. 141; Buford v. Fannen, 1 Bay So. C. 273; McConnell v. Linton, 4 Watts, Penn. 357; Harger v. McMains, 4 Watts, Penn. 418; Robinson v. Barrows, 48 Me. 186; Stirling v. Garritee, 18 Md. 468; State v. Smith, 31 Mo. 566.

149 Greenfield Bank v. Leavitt, 17 Pick. Mass. 3; Baker v. Wheeler, 8 Wend. N. Y. 505; see Kid v. Mitchell, 1 Nott & M'C. So. C. 334. Where C at New Orleans converted flour sent to him to be forwarded to B at Boston, the value of the flour at Boston was the measure of damages. Farwell v. Price, 30 Mo. 587.

150 Banks v. Hatton, 1 Nott & McC. So. C. 221; see Jamson v. Hendricks, 2 Blackf. Ind. 94. So where the conversion consists in mining coal on the plaintiff's land, the injury to the land is part of the damages. Forsyth v. Wells, 41 Penn. St. 291.

151

Strong. Strong, 6 Ala. N. s. 345; Parish v. Wheeler, 22 N. Y. 494. If the plaintiff has recovered his property he can recover the expense of recovery. Ford v. Williams, 24 N. Y. 359; Perkins v. Freeman, 26 Ill. 477.

152 Selden v. Cashman, 20 Cal. 56; Callaway Co. v. Clark, 32 Mo. 305: Butler v. Collins, 12 Cal. 457.

153 Roming v. Roming, 2 Rawle, Penn. 241; Mercer v. Jones, 3 Campb. 477. So held in the case of a policy of life insurance. Watson v. McLean, 1 Ell. B. & E. 75.

able value of the notes, but notes signed by the defendant, or which he is liable to pay, must be estimated at their full value.'

154

The defendant may prove, in mitigation of damages, that the plaintiff has himself recovered the property, or it has been restored to him and accepted; the verdict should be for the actual injury occasioned by the conversion, including the expenses of recovery.155 But if the taking was wrongful, and an action of trover for the recovery of the property be commenced, the defendant cannot, in mitigation of damages, tender the property so taken to the plaintiff, and compel him to take it; 156 nor will such a tender avail the defendant where the property has been essentially injured after an action brought.157

3553. The judgment in rover, when the verdict is for the plaintiff, is that he recover his damages and costs; its effect is to change the title of the property, so as to make it liable for the payment of the defendant's debts after satisfaction has been made,158 and the defendant's title refers back to the time of the conversion.159 The property is not changed by the default of the defendant, but by the recovery of the judgment against him, and the subsequent satisfaction.160 3554. When the verdict is for the defendant, the judgment is that he recover his costs.

154 Robbins v. Packard, 31 Vt. 570; Craig v. McHenry, 35 Penn. St. 120.

155 Greenfield Bank v. Leavitt, 17 Pick. Mass. 3; Yale v. Saunders, 16 Vt. 243; Hepburn v. Sewell, 5 Harr. & J. Md. 212; Pierce v. Benjamin, 14 Pick. Mass. 356, 361; Rutland R. R. v. Bank of Middlebury, 32 Vt. 639; Hibbard v. Stewart, 1 Hilt. N. Y. 207.

156 Green v. Sperry, 16 Vt. 390.

157 Hart v. Skinner, 16 Vt. 138.

158 Rogers v. Moore, 1 Rice, So. C. 60; Chartram v. Smith, 1 Rice, So. C. 229; Robertson v. Montgomery, 1 Rice, So. C. 87; Osterhout v. Roberts, 8 Cow. N. Y. 43; Morris v. Berkley, 2 Const. So. C. 228; Hepburn v. Sewell, 5 Harr. & J. Md. 211.

150 Hepburn v. Sewell, 5 Harr. & J. Md. 211; Stirling v. Garritee, 18 Md. 468.

160 Carlisle v. Burley, 3 Me. 250.

399