But in a recent case, it was laid down by Bayley J., that the sale of the whole of a chattel, by one tenant in common, without the authority of his co-tenant, express or implied, was with respect to the other a wrongful conversion of his undivided part a. An undivided property in a chattel, is a sufficient title to maintain trover against a stranger who has wrongfully dealt with it as his own; but a stranger may plead in abatement the nonjoinder of another part owner as co-plaintiff; if he omit to do so, the plaintiff may recover for any injury to his undivided interest, damages co-extensive with that injury b. Trover will lie against a corporation for a conversion by their Corporaagent in the course of his employment c. tion. and wife. A husband and wife may be joint plaintiffs in this action, Husband where there has been a conversion of the wife's goods, either before or during coverture; if the conversion has been during coverture the husband may sue alone d. If there has been a conversion by the wife alone, either before or after marriage, or a joint conversion by the husband and wife during coverture, they may be sued jointly . Proof of a conversion by the husband alone, will warrant a verdict against himself alone, though it be alleged that they jointly converted the goods to their own use f A declaration against husband and wife for converting the plaintiff's goods, is supported by proof of any joint act whereby the plaintiff was deprived of his property 8. In trover, as in other actions ex delicto, several may be joined as defendants, and one or more may be acquitted, and the rest found guilty; but all cannot be found guilty on the same count, without proof of a joint conversion by all. Therefore, where plaintiff brought trover for goods against A. and B., bankrupts, and C. and D., their assignees, and proved that the bankrupts, before the bankruptcy, were guilty of a wrongful Several may be joined as defendants. conversion of the goods; and that the assignees, after the bankruptcy, took possession of the goods, and refused to deliver them to the plaintiff on demand, and the jury found all the defendants guilty, there being only one count in the declaration; held, that the evidence did not warrant such finding; for the acts of the bankrupts, and of the assignees, were in themselves distinct, and there was no one joint act of conversion by them all. But where A. purchased goods of B. for C., who gave A. his acceptance for their amount; C. having become bankrupt, A. proved the acceptance under the commission, and afterwards returned the goods to B., on which C.'s acceptance was destroyed; in an action of trover by the assignees of C.; held, that the jury were warranted in finding that A. and B. had been guilty of a joint conversion b. SECTION VIII. Averment of the conversion. THE DECLARATION. THE venue in this action is transitory. The declaration should state that the plaintiff was possessed of the goods, as of his own proper goods, and that they came to the defendant's possession by finding. The omission of the former words is, however, immaterial after verdict; but fatal after judgment by default d; and the finding is not traversable. As the conversion is the gist of the action, it must also be stated, but the mode of conversion need not be stated; it will be sufficient to aver that the defendant "converted the goods to his own use." Though the day of the finding or conversion is immaterial, yet some day and place of conversion must be alleged. It is not, however, necessary to prove that the con f Nicoll v. Glennie, 1 M. & S. of the chattel. version took place in the place alleged in the declaration. The Description chattels should be described with certainty, that the jury may know what is meant; but the same precision and certainty are not required in this action as in detinue, where the thing itself is to be recovered. Thus, trover for a library of books, without stating what they are, has been held sufficient b. So, for a piece of tape, without saying how many yards. The value of the chattels should also be stated 4. When the action is brought by an executor, administrator, or the assignees of a bankrupt, the character in which the parties sue should appear in the declaration. If the plaintiff, in such case, was never in actual possession of the goods, he need not allege that he was possessed. As where goods of a testator are taken and converted after his death, and before the executor obtains possession of them; he may declare that the testator was possessed, &c., and that the defendant after his death converted them; or as the conversion was after the testator's death, he may declare on his own possession as executor. And if the goods were taken in the testator's lifetime, though not used until after, the executor may declare of a trover and conversion in the testator's lifetime. The same principle applies to assignees of a bankrupt. If they never had actual possession, they may declare on the possession of the bankrupt, or on their own constructive possession; and in general, it is advisable to insert in the declaration counts in each form. Where the assignees of two partners, bankrupts, declared on the possession of the bankrupts only, and it appeared that the greater part of the goods belonged to one of the partners only, before the commencement of the partnership, and had never been brought to the partnership fund, and that the residue formed part of the joint estate; it was held, that the plaintiffs could recover the residue only; whereas if there had been a count on the possession of the assignees, as it was a joint commission, and the a Brown v. Hedges, Salk. 290. Elpicke v. Acton, 1 Vent. 114. 2 Saund. 74. a. с Radley v. Rudge, 2 Stra. 738. d2 Ch. Pl. 596. Per curiam, 4 B. & A. 271. e Hudson v. Hudson, Latch. 214. 2 Saund. 47. n. f Id. Jenkins v. Plombe, 6 Mod. 182. Crossier v. Ogleby, 1 Stra. 60. 2 Saund. 47. n. How exeassignees should de cutors and clare. Husband and wife. assignment under such commission passed both joint and separate effects, the whole might have been recovered, and there would not have been any misjoinder, since the plaintiffs would have described themselves as assignees of both partners in the count on their own possession, which they might well do, though the property was separate, the commission being joint. Assignees, however, under a joint commission, when suing for a separate demand, need only describe themselves as assignees of those bankrupts for whose separate demands they sue b. But where the commissioners are separate, and the same persons appointed assignees under each, though they may declare for a joint demand due to all or any number of the bankrupts, describing themselves as assignees of those bankrupts, yet they cannot declare in the same declaration for separate demands due to each bankrupt, nor for joint demands, and also separate demands c. A declaration by husband and wife must not allege a possession in them both, nor state the damage to have accrued to them both; for the possession of the wife is the possession of the husband, and the property vests in him exclusively, consequently, the conversion cannot be to the damage of the wife, but of the husband. In trover against husband and wife, if the declaration state that they converted the goods to their own use, it will be sufficient after verdict; for a conversion does not necessarily imply an acquisition of property. SECTION IX. THE PLEADINGS. By Reg. Gen. Hil. T. 4 W. IV. reg. 4, “the plea of not guilty, in actions on the case, shall operate only as a denial of the a Cock r. Tuno, S. N. P. 1379. 2 Saund. 47. n. 5th ed. b Scott v. Franklin, 15 East, 428. Harvey v. Morgan, 2 Stark. 17. Stonehouse v. De Silva, 3 Camp. 399. Hancock v. Haywood, 3 T. R. 433. Sheatfield v. Halliday, Id. 779. Scott v. Franklin, supra. See a very elaborate note on this subject in 2 Saund. 47. o. 5th ed. d Nelthorp v. Anderson, 1 Salk. 114. Draper v. Fulkes, 1 Yelv. 165. 2 Saund. 47. i. e 685. Keyworth v. Hill, 3 B. & A. breach of duty or wrongful act alleged to have been committed by the defendant." The rule then mentions the following example as applicable to trover. "In an action for converting the plaintiff's goods, the plea of not guilty shall operate as a denial of the conversion only, and not the plaintiff's title to the goods." con puts in Not guilty issue a conversion in fact only. admits a property in the plaintiff, but to the extent necessary The conversion which is put in issue by a plea of not guilty, is a conversion in fact, and not merely a wrongful conversion; and where there has been a conversion in fact, and the defendant insists that such conversion was lawful, he must since the new rules confess and avoid it, by pleading specially the right and title by virtue of which he converted it; therefore it has been held, that the defendant could not shew under a plea of This plea not guilty that he and the plaintiff were joint-tenants of the chattel in question; to avail himself of that defence he should confess and avoid the conversion by pleading specially the title by which he did it ". But where there has been no actual version, but merely a demand and refusal, which are only evidence of a conversion, the defendant may shew under a plea of not guilty that he was tenant in common with the plaintiff, or was otherwise entitled to retain the goods; and it seems that in such case he may even shew that he had a lien on them; for the plea of not guilty admits only that the plaintiff had some property or right of possession, as between him and the defendant, and the latter may give in evidence any defence consistent with that admission, though he cannot be allowed to go into a case which is contradictory to it; he may therefore shew that he version. himself had a similar interest with the plaintiff, for that is perfectly consistent with such admission ". But he cannot give evidence to shew that the plaintiff was the finder of the goods, and that he himself was the real owner; nor that the sole property was in another, by whose directions he did the act complained of; for that would be inconsistent with his admission; he may however prove, to rebut a prima facie case of conversion, that another has the same the action only. The de fendant may shew any thing under it not incon sistent with that ad mission, if there has been no actual con Per Parke, B., in Stancliffe v. Hardwick, 2 C. M. & R. 4. 1 Gale, VOL. II. |