ant is guilty of no crime, and liable to no punishment, it is unneceffary to lay the facts done, to be against the peace.

The plaintiff in his declaration, fhould declare that he is the owner of the property in question, or at least that he has the lawful poffeffion; but if he declare upon a general property, and prove a fpecial, it is good. The goods taken, or injured, fhould be defcribed in the declaration, fo that their identity can be af certained, for to declare of goods generally, is ill. A price and value should be put upon them, and the time of doing the injury be mentioned. But the day is not material that is laid in the declaration, and the plaintiff is not bound to prove the defendant guilty on that day, but may prove bim guilty on any other day before the bringing the action and within the time limited. by the ftatute of limitations, and it fhall be good.

When the trefpafs arifes from an abufe of an authority given by law, or a tort done fubfequent to a lawful act, it is fufficient in the declaration to ftate a trefpafs generally, and then if the defendant plead a fpecial juftification, the particular injury, or abuse shall be stated in the replication. As where the plaintiff declared generally for breaking his houfe, and carrying away his goods; the defendant juftified the taking, as a diftrefs, damage feafan, the plaintiff replied, that the diftrefs, the defendant had converted them to his own ufe. The defendant demurred because it was a departure; but the court held otherwife, for the abufe of the authority made him a trefpafler from the beginning; which need not be fpecially ftated in the declaration, but may come out in the replication.

CHAPTER NINTH.

OF TROVER,

TROVER is an action, in the nature of an action of trespafs

on the cafe, which lies where one man obtains poffeffion of the goods of another, by delivery, finding, or otherwise, and refufes to deliver them to the owner, or fells, or converts them to his own ufe, without the confent of the owner; for which the owner by

2 Efr. Dig. 93, 95.

& Co. Lit. 283.

c Salk. 221.

by this action recovers the value of his goods. In this action, the defendant is fuppofed to have come legally into poffeffion of the goods, and the wrong done, or the gift of the action, is the illegal conversion of them to his own ufe, without which the action cannot be maintained.

The word trover, is derived from a French word, which fignifies to find. Criginally this action was brought only in cafes of finding, but the convenience of it, induced courts to extend it to other cafes of a different nature, and the form of the declaration has been to alledge a finding by the defendant, when actually there was a tortious taking. This action fuperceded the action of de tinue at common law, which was brought to obtain a specific reforation of the thing. It is wholly obfolete in England, and has never been introduced into this ftate.

In respect of the perfons who may bring this action, and against whom it may be brought, the general rule is the fame as in the action of trefpafs-We need only remark in addition, that as in trover, the defendant is fuppofed to come lawfully by the poffeffion of the goods, there are certain cafes in which he has a lien upon them, and may retain them till his demand is fatisfied.

The doctrine in favour of liens, courts have much leaned to of late years, for the convenience of trade, allowing them where there. is an exprefs contract to that effect, and where it is implied either from the ufage of the trade, or the manner of dealings between the parties.

A factor has a lien upon goods configned to him, not merely what is due for thofe goods, but for the balance of a general account, and for which he may retain them. So he has a lien upon money in the hands of the buyer of goods, which he fold him being the goods of the principal. So if goods had been configned by a trader to a factor, and the factor knew that the trader was in in. folvent circumftances, but he neverthelefs advanced him money on the credit of the goods, he has a lien upon them for the money he advanced.

In the cafe of manufacturers, the lien which they have upon

the

a 4 Burr, 2227. Cowp. 251. 2. Burr, 932. 1 Black. Rep. 193. bi Alk. 235. 4 Burr. 2214.

the goods entrusted to them to manufacture, is not a general one, but confined to the work done on the goods themselves, unless exprefs ufage of the trade is proved to the contrary. As a manufacturer who takes goods for a particular purpose, as to die them, has a lien on them for the work done to the goods themselves, but cannot retain them for any other demand against the owner; tho the demand be for fimilar work before done on funilar goods, ard delivered to the owner.

But the ufage of trade will create a general lien. As where it was proved to be the ufage for packers to lend money to clothiers, and the cloths left to be packed were confidered as a pledge not only for the packing, but for the loan of money likewife; and here the bankrupt who was a clothier, borrowed money on a note of hand from the petitioner, who was a packer,. but at a time when he had no dealings with him, and the bankrupt having afterwards fent him cloth to pack; it was held, that he might retain the cloth for the debt, as well as for the price of packing.

All pawns from the nature of the tranfaction create liens. b An inn-keeper has by law a right to detain a horfe left with him, till he is paid for the keeping. For as he is by law compelable to receive a guest and his horse, he fhall have this remedy. And tho in this cafe, the horfe had been brought to the inn by a ftranger,. without the owner's knowledge, and was afterwards claimed by the owner, yet the inn-keeper was allowed to keep the horse till paid; for fo by pretended ignorance, that the horse was fent to an inn, the owner might defraud the inn-keeper, by getting his keeping for nothing. So that to give this right of retainer it is not neceffary that the owner fhould be a gueft, for merely. leaving the horfe at the inn, gives the inn-keeper the right of re taining till paid for his keeping. But this right of retaining is. only while the horfe remains in the inn-keeper's poffeffion, for if he fuffers the horfe to be taken away, and the horfe is brought again to his inn, he cannot retain him for the former demand.

A carrier may detain goods entrusted to him to carry till he is paid for their carriage. But this rule of lien being admitted for

the

bi Roll. Rep. 419, c Salk ƒ Cio. Car. 271.

at Alk. 237, 222. Pre. Chanc. 580. 388. di Strange, 557. e 2 Ld. Ray m. 752.

the benefit of trade, it fhall be confined to that only. A perfon therefore may not detain cows for their keeping. And in general, no perfon can in any cafe retain where there is a fpecial agreement to pay.

A few cafes more may be added under this head, refpecting the perfons who may fue or be fued in trover.

Trover will lie against the mafter for goods which were delivered to the fervant; but in fuch case, it must appear that the goods came to the hands of the mafter, or that the fervant was ufually employed by the mafter to receive the goods in the way of the master's trade. As where a pawn was delivered to a pawnbroker's fervant, and which being loft, the pawner recovered in trover against the master: So trover will lie against the fervant himself for difpofing of another's goods, tho to his master's use, and that whether he has any authority from the mafter or not.

bOne tenant in common or joint tenant cannot have trover against his companion, for the poffeffion of one is the poffeffion of all. c If one tenant in common deftroys the thing held in common, the other may have trover against him for it-for that is a total converfion to his own ufe of what he had only a part.

Trover will lie against husband and wife, whenever the converfion has been by the wife, before coverture, or by herself after coverture, for it being a tort by her, fhe fhall be joined with her husband in the action; but if the converfion be after coverture, it must be alledged to the ufe of the hufband only.

and when

Trover will lie against two or more perfons; perfon has been fubjected to pay for any article of property in this action, he thereby becomes vefted with the ownership of it..

As to the cafes in which this action will lie, it is to be obferved that this action is calculated and designed to afcertain and decide the right of property in things perfonal, and will generally lie where one perfon has obtained property from another, and converted it to his own ufe. Where a difpute arifes refpeding the validity of a fale, the question is ufually fettled by this action.

As if a perfon claims to hold property by purchase of another, and the original owner contends that it was stolen from him, or taken from him wrongfully, or that the feller had no authority to make the fale. If a creditor contends that his debtor has difpofed of his estate without confideration, in a fraudulent manner with defign to defraud his creditors, he may levy his execution for his debt upon it, and caufe it to be fold in fatisfaction of his debt, and then the purchafer brings his action of trover; by which in thofe cafes the title to the thing in question is decided.

This action does not lie where there is merely an injury, or abufe done to the perfonal eftate of another, as wounding, or killing a horfe. In thefe cafes, trefpafs is the proper action.

Trover lies only in thofe cafes where the thing has been taken, and converted to the ufe of the wrong-doer. If a perfon acquires poffeffion of my property lawfully, as by hiring, borrowing, bailment or finding, and refufes to deliver it to me on demand, and converts it to his own ufe, this action lies. Where a perfon obtains my property wrongfully, and by force, trover lies against him to recover the value of the article taken. Trefpafs will lie in the the fame cafe to recover damages, not only for the value of the article but the injury arifing from the deprivation. And this feems to be the diftinction between these actions. Trover is defigued to recover the value of the thing, and trefpafs the damages. Trover will lie in all cafes where trefpafs will lie for a tortious taking of goods; but trover waves any challenge for damages on account of the force. Trefpafs will never lie, where the original acquifition of the poffeffion of the goods was lawful, unless fome act be done which renders the perfon a trefpaffer from the beginning. Action of trover lies for every thing capable of ownership that is of a perfonal nature, and in all cafes where one perfon detains the property of another without lawful right, tho he obtained it lawfully.

• An action of trover lies, tho the goods converted be afterwards restored to the owner, for the refloration only goes in mitigation of damages.

Cenverfion may be exprefly evidenced by an actual use and difpofition

4 6 Mod. 212.

1