No. 3521.

Book 4, tit. 9, chap. 2, sec. 2, § 2, art. 2.

No. 3521.

therefore maintain trover against a stranger. (a) 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 pawnor was a tenant for life.(b)

When the goods have been delivered on a void agreement, or the contract has been rescinded, the former owner may maintain trover against the other contracting party, because no property in the goods passes to the vendee or bailee; (c) and so, when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.(d)

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 ; (e) 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. (f)

Art. 2.-Of special property.

3521. A person having a special property in goods

(a) 2 Saund. 47, b.

(b) Hoare v. Parker, 2 T. R. 376.

(c) 2 Saund. 47, b, note (ƒ).

(d) Foshay v. Ferguson, 5 Hill, 154.

(e) 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.

(f) Hoffman v. Carow, 22 Wend. 285.

| No. 3522.

Book 4, tit. 9, chap. 2, sec. 2, § 2, art. 3.

No. 3522.

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. (a) But a mere servant cannot support this action, because his possession is that of his master, and he has, therefore, no special property; (b) nor can a party who has a mere right of custody maintain this action; thus, parish officers cannot recover in trover from an exwarden, the books kept by him while in office; the remedy is by mandamus.(c)

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.(d)

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. (e)

Art. 3.-Of the bare right of possession.

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

(a) 2 Saund. 47, b; Stirling v. Vaughan, 11 East, 626. Coleson v. Blanton, 3 Hayw. 152; Betts v. Mouser, Wright, 744.

(b) Bloss v. Holman, Owen, 52.

(c) Addison v. Round, 6 N. & M. 422.

(d) Waring v. Cox, 1 Campb. 369; 2 Saund. 47, d. (e) 2 Taunt. 268.

No. 3523.

Book 4, tit. 9, chap. 2, sec. 2, § 2, art. 4.

No. 3524.

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. (a) 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.(b)

Art. 4.-Of the right to immediate and exclusive possession.

3523.-1. 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 he 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.(c)

3524.-2. 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 until it has

(a) Amory v. Delamire, 1 Stra. 505; 2 Saund. 47, d; Clark v. Malory, 3 Harring. 68.

(b) Taylor v. Parry, 1 Scott, N. R. 576; S. C. 1 Man. & Gr. 604. (c) Laspeyre v. McFarland, 2 Tayl. 187.

No. 3525.

Book 4, tit. 9, chap. 2, sec. 2, § 3, art. 1.

No. 3526.

been measured and set aside; (a) or in the case of a manufactured article, if it be not specifically appropriated to the vendee, he has no such property as will maintain trover. (b)

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.(c)

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.

§ 3. Of the nature of the injury.

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. (d) The fact of conversion may be shown in three ways: by proof of, 1, the wrongful taking of the goods of another; 2, the wrongful assumption of the property in them, and the right of disposing of them; 3, the wrongful detention of them, after demand and refusal.

Art. 1.-Of the wrongful taking.

3526. The wrongful taking of the goods of another, who has the right of immediate possession, with intent

(a) 2 M. & S. 397; Zagury v. Furnell, 2 Camp. 240.

(b) Abington v. Lapscombe, 1 Gale & D. 230.

(c) White v. Osbourn, 21 Wend. 72; Hyde v. Stone, 7 Wend. 354; Herrin v. Heaton, 1 Shepl. 193; Weld v. Oliver, 21 Pick. 559; Newlin v. Colt, 6 Hill, 461; 2 Saund. 47, f and g; Fennings v. Grenville, 1 Taunt. 241; Heath v. Hubbard, 4 East, 121.

(d) Shipwick v. Blanchard, 6 T. R. 299, arguendo; Foulkes v. Willoughby, 8 M. & W. 540, 546, 551; Hutchinson v. Bobo, 1 Bailey, 546 ; Reid v. Colcock, 1 N. & McC. 592; Reynolds v. Schuler, 5 Cowen, 323.

No. 3527.

Book 4, tit. 9, chap. 2, sec. 2, § 3, art. 1.

No. 3527.

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. (a) 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.(b) 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.(c)

3527. The taking need not be actual; it is equally a conversion when it is constructive; as when a party assumes to dispose of, or exercise a dominion over personal property, to the exclusion and defiance of the plaintiff's right; (d) for example, the act of unlawfully levying upon and selling stills, without taking actual possession, will amount to a conversion on the part of a constable ;(e) or the act of unlawfully distraining on the coals of the plaintiff, in the coal-house of another man, and selling them without removing them, will have the same effect;(f) and if a person find a raft of timber on a sand bar, in a navigable river, high and dry, and take possession of it, assume to dispose of it, hire a person to assist him in removing a part, and

(a) 2 Saund. 47, g; Thurston v. Blanchard, 22 Pick. 18; Durell v. Mosher, 8 John. 445; Harrington v. Payne, 15 John. 431: Shipwick v. Blanchard, 6 T. R. 299, arg.; Davis v. Waleb, 1 McCord, 213; Jones v. Duncan, 1 McCord 428; Farrington v. Paine, 15 John. 431; Woodbury v. Long, 8 Pick. 543.

(6) Foulkes v. Willoughby, 8 M. & W. 540; Plumer v. Brown, 8 Met. 578. According to these decisions, the ancient rule of law laid down in 1 Chit. Pl. 152; Bac. Ab. 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.

(c) 1 Stra. 576; Dench v. Walker, 14 Mass. 500. See Young v. Mason, 8 Pick. 551.

(d) Bristol v. Burt, 7 John. 254; Murray v. Burling, 10 John. 172; Reynolds v. Shuler, 5 Cowen, 323.

(e) Burke v. Baxter, 3 Mis. 207.

(f) 5 Cowen, 323.

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