account of A., A. has a sufficient property in it to maintain trover against C.a Where a contract was put an end to by both parties, but the goods remained in the possession of the intended purchaser; and upon the price rising he converted them to his own use, and offered the former price, which the owner refused, and demanded the increased price, and on refusal held the defendant to bail" for goods sold and delivered;" held, that it did not prevent him from suing in trover.b Where plaintiff being indebted to J. shipped goods under a bill of lading addressed to R., with directions to him to sell the goods on plaintiff's account, and place the net proceeds to the credit of J., R. having pledged the goods; held, that the *1474 plaintiff had a sufficient title to sue in trover, and that the right to the possession of the goods was not in Je A gift. Award. Title deeds. The verbal gift of a chattel does not pass the property in it to the donee, so as to enable him to maintain trover for it.d But it is said that the donee may maintain trover for such chattel against a mere wrong-doer. Property does not pass by an award; therefore, where an arbitrator, under a submission of all matters in difference, awarded that A. should deliver up a certain specific chattel to B. before a certain day, on being paid a certain sum; it was held, that the property in the chattel did not thereby pass to B., so as to enable him to maintain trover for it, though he had tendered the sum awarded to be paid; but if A. had accepted the money, it might be otherwise, for it would amount to a ratification of the award, and an assent to the transfer. The owner of an estate may in general maintain trover for the title deeds; for "it is an established principle, that whoever is entitled to the land has also a right to all the title deeds affecting it."g SECTION III. SPECIAL PROPERTY. Special A PERSON having a special property in goods may maintain b Woodley v. Brown, 1 C. & P. 593. (11 Eng. C. L. 486.) Parry v. Dawson, 3 Anst. 710. Selleck v. Smith, 3 Bing. 603. (13 Eng. C. L. 66.) Irons v. Smallpiece, 2 B. & A. 551. 'Hunter v. Rice, 15 East, 100. • 2 Saund. 47, a. Per Lord Tenterden, C. J., Harrington v. Price, 3 B. & Ad. 173. (23 Eng. C. L. 47.) Roberts v. Wyatt, 2 Taunt. 268. Hooper v. Ramsbottom, 6 id. 12. (1 Eng. C. L. 292.) Parry v. Frame, 2 B. & P. 451. cient to trover against any party who wrongfully converts them. property Thus a carrier may maintain this action against a stranger who is suffi*takes the goods out of his possession. So may a factor, a maintain warehouseman, a pawnee, a trustee, an agister of cattle, the trover. hirer of goods even for a temporary purpose. Church- *1475 wardens may maintain trover for the goods of the church taken away either in their own time or in that of their predecessors; for the churchwardens of the preceding year cannot maintain an action after the expiration of their year. But they have not such special property in the account books kept by the surveyor of highways as to enable them to maintain trover against a surveyor who has gone out of office and refuses to deliver up the books. If a person who has a temporary property in goods delivers them to the general owner for a special purpose, he may, after that purpose is answered, upon demand and refusal, maintain trover for them. A sheriff has such special property in goods seized in execution as to enable him to maintain trover for them against a wrong-doer. But a landlord has not such special property in goods distrained by him, as to enable him to maintain this action, for he has only a pledge with a power to sell them by statute. The party, however, who purchases goods distrained, may maintain trover though the proceedings under the distress be irregular. But where a sheriff under a writ of fi. fa. against A., sold the goods of B.; held, that the purchaser was liable to the latter in trover, although he purchased such goods at a public sale directed by the sheriff not suffi A mere servant cannot maintain trover.k(1) Where a Possescolonel had purchased horses for government, and they being sion as a approved of by the proper inspecting officer, were sent under servant is the care of a serjeant to the receiving depôt for his Majesty's cient. use; held, that the colonel had not such a special property as to maintain trover for one of them which was taken out of the possession of the serjeant as a distress for a turnpike-toll.' *A person who has only a special property may, in some *1476 cases, maintain trover, though he has never had actual pos- Special session. Thus, a factor to whom goods have been consigned, property "A special property may be in one, as in the instance of carriers, while the absolute right to it may exist in another. When a competition arises between those two parties, the right of the latter must prevail; but as against all other persons, a special property is sufficient." Per Lord Kenyon, C. J., in Webb v. Fox, 7 T. R. 396. B. N. P. 33. Arnold v. Jefferson, 1 Lord Raym. 276. * 2 Saund. 47, b. c. d. B. N. P. 33. • Harrison v. Round, 2 H. & W. 18. (31 Eng. C. L. 184.) Roberts v. Wyatt, 2 Taunt. 268. h Moneaux v. Goreham, S. N. P. 1362. d 2 Saund. 47, c. Nom. Addison v. Round, 4 Ad. & Ell. 799. 2 Saund. 47. i Lyon v. Weldon, 2 Bing. 334. (9 Eng. C. L. 424.) j Farrant v. — 3 Stark. 130. (14 Eng. C. L. 166.) * Owen, 52. I Hopkinson v. Gibson, 2 Smith, 202. (1) (Faulkman v. Brown, 13 Wend. 63.) without posses cient. but which he has never received, may bring this action.' Where A. shipped goods at Dundee, by the order of and for B. sion suffi- in London, and shortly after the shipment A. ascertained that B. had stopped payment, and he then indorsed and forwarded the bill of lading to the plaintiff in London, directing him to take possession of the goods and he demanded them from the defendants, who were wharfingers, and in whose custody they were; held, on their refusal to deliver over the goods to the plaintiff, that he had a sufficient title to sue for them in trover.b Posses is sufficient to maintain trover wrong doer. SECTION IV. POSSESSION ALONE WHEN SUFFICIENT. POSSESSION alone will enable a party to maintain this action sion alone against a wrong-doer; for possession is prima facie evidence of property.(1) As where a chimney-sweeper's boy found a jewel, and carried it to the shop of the defendant, who was a goldsmith, to know what it was, and delivered it into the hands against a of his apprentice, who, under the pretence of weighing it, took out the stones, and called to the master to let him know it came to three half-pence, and the master offered the boy the money, but he refused to take it, and insisted on having the thing again, whereupon the apprentice delivered to him back the socket without the stones; in trover against the master, it was ruled-1st. That though the finder of a chattel does not acquire an absolute property therein, yet he has such a property as will enable him to keep it against all but the rightful owner; and consequently he may maintain trover. 2d. That the action will lie against the master, who gave credit to his apprentice and was answerable for his neglect. * *1477 But where the owner of furniture lent it to the plaintiff, under the terms of a written agreement, and he placed it in a house occupied by the wife of B., who afterwards became bankrupt, and his assignees having seized the furniture; held, that the plaintiff might recover in trover, without producing the agreement. So where the plaintiff bought and paid for a ship stranded on the English coast, but the transfer was not regular; he tried to save her, but she went to pieces; the defendant possessed himself of parts of the wreck which drifted a Fowler v. Down, 1 B. & P. 44. 2 Saund. 47, d. Morison v. Gray, 2 Bing. 260. (9 Eng. C. L. 405.) е • Blackham's case, 1 Salk. 290. Armory v. Delamirie, 1 Stra. 505. Burton v. Hughes, 2 Bing. 173. (9 Eng. C. L. 368.) (1) (Daniel v. Ball, 11 Wend. 57, n.) on his farm; held, that the plaintiff's possession enabled him to recover for them in trover. An uncertificated bankrupt has a right to goods acquired by him since his bankruptcy, as against all the world but his assignees, and may maintain trover for them against a stranger.b The possession of land, sinking a shaft therein, and raising ore, is prima facie evidence of a property in all the minerals under the land. SECTION V. CONVERSION. conver sion. THE gist of this action is the wrongful conversion of the What conplaintiff's property by the defendant. A conversion may con- stitutes a sist in a tortious taking of the chattel, or in a wrongful assumption of property in it, or in making an illegal use of it, or in a wrongful detention of it after a demand and refusal. Any wrongful act whereby the defendant deprives the plaintiff of his property, even for a short period, is a conversion; as if A. take the horse of B. and ride him, and then deliver him to B., it is a conversion. If there be a deprivation of property to the plaintiff, it will constitute a conversion, though there be *1478 no acquisition of property by the defendant. The wearing of a pearl is a conversion.f Where a bankrupt was required by his assignees, on his last examination, to deliver to them his books of account which he did; held, that he must be deemed to have delivered them on compulsion; and it being afterwards found that he was not a trader, and that the commission had improperly issued, that he might support an action of trover against such assignees, without any previous demand of the books. If goods be wrongfully seized, though they be not removed from the place in which they were, it is a conversion; for the possession is in point of law changed by their being distrained. If A. wrongfully take goods, and B. takes them from A., it is a conversion by B. But trover will not lie for a chattel which has been taken for the owner's benefit, without an intention to convert Sutton v. Buck, 2 Taunt. 302. See Bassett v. Maynard, Cro. Eliz. 819. 2 Saund. 47, c. b Webb v. Fox, 7 T. R. 391. Rowe v. Brenton, 8 B. & C. 737. (15 Eng. C. L. 335.) d B. N. P. 46. Keyworth v. Hill, 3 B. & A. 687. (5 Eng. C. L. 422.) 'Lord Peatre v. Heneage, 12 Mod. 519. Summersett v. Jarvis, 6 Moore, 56. 3 B. & B. 2. (7 Eng. C. L. 322.) I Wilbraham v. Snow, Sid. 438. Conver sion by a bailee. it; as where the defendant took the plaintiff's boat for the purpose of assisting the plaintiff in saving his property, and the boat was sunk, it was held no conversion.a If a bailee deals with goods contrary to the order of the owner, it is a conversion; as if he break open a box entrusted to his care; or if he draw part of the liquor out of a vessel, and fill it up with water, it is a conversion of all the liquor. (1) But it has been held, in a recent case, that the mere taking away and destroying a part of property which is in the hands of a bailee, who may deliver up the rest, is not a conversion of the whole, so as to enable the owner to maintain trover for the whole. Trover will not in general lie against a bailee for having lost goods through negligence, the owner's remedy being an action on the case."(2) This action, therefore, will not *1479 lie against an innkeeper, for the loss of articles deposited in his house, for the purpose of being forwarded by a carrier.f The fact of conver sion is a question for the ju ry. Where a pipe of wine, belonging to the plaintiff, was deposited in the defendant's cellar, and was bottled at a time during which there were conflicting claims to it by the plaintiff and the assignees of the party to whom it was sent, and who resided in the defendant's house; by whom, or by whose orders the wine was bottled did not appear, though there was some evidence that it was likely to be injured from not being bottled; held, that it was a question for the jury, whether the act of bottling operated as a conversion; held also, that it was a question for the jury to say, under all the circumstances, whether the drinking of a part of the wine, taken in connection with the bottling, amounted to a conversion; and they having found that it did not, the court refused to disturb the verdict.5(3) Wrongful Trover will lie for goods taken under a wrongful distress; but distress. it will not lie for goods irregularly sold under a distress, the statute 11 G. II, c. 19, s. 19, having declared that no person should be considered as a trespasser ab initio, for any thing irregularly done under a distress.h Trover Trover will lie against a sheriff who takes in execution the will lie a goods of a bankrupt, although he sold the goods and paid over Philpott v. Kelley, 3 Ad. & Ell. 106. (30 Eng. C. L. 40.) 1 H. & W. 134. Wallace v. King, 1 H. Bl. 13. Shipwick v. Blanchard, 6 T. R. 298. (1) (If a person hire a horse to go to a certain distance but goes further, he is liable in trover for an unlawful conversion. Rotch v. Kawes, 12 Pick. 136.) (2) (Pachard v. Getman, 4 Wend. 613.) (3) (If there is evidence of a conversion, though slight, the jury are the judges of the sufficiency. Harger v. M'Main's, 4 Watts, 418.) |