THE CASE.

TRESPASS ON for refusing without reason to receive guests or carry goods.37 It lies for deceit in sales of land or goods;38 for injuries occasioned by any false affirmation made to defraud,39 or by cheating or false pretences.*

42

It lies for injuries received from a private nuisance, as obstructing ancient lights," and against the assignee, where the nuisance has been assigned, or for over-hanging another's land so as to cast water on it, or for erecting a manufacture the vapour of which injures plaintiff's herbage, or for injuries occasioned by the erection of mill-dams."

It lies for injuries affecting one in his domestic relations as a parent, a husband,46 a master,47 but in these cases, if the injury was really committed with force, trespass also, is a

THE CASE

proper remedy;48 against an officer for refusing to accept a le- TRESPASS ON gal vote, on proof of malice express or implied,49 and also in favour of the candidate voted for 50 against an officer making a false return to a mandamus, or other false return ;51 for violations of literary property and copy rights,52 and for violations of rights secured by patents.53 It lies in favour of a plaintiff or officer, against a stranger who obstructs the execution of process, as by removing defendant's goods or locking his door54 against an officer who maliciously executes process in an oppressive and unreasonable manner;55 for secretly putting contraband goods on board another's vessel;56 for waste, against a lessee or his assignees ;57 but not by a mortgagee against the mortgagor until after forfeiture,58 nor by any one having an expectant interest in land less than the inheritance.59 Case is the proper remedy for negligence in navigating ships," riding horses, driving carriages, &c.1

60

rights are se

tute.

Whenever a statute prohibits an injury to an individual, or Lies where enacts that he shall recover a penalty or damages for such in- eured by stajury, though the statute be silent as to the form of the remedy, this action may be supported.62 And if a statute gives a remedy in the affirmative, without a negative express or implied, for a matter which was actionable at common law, the party may sue at common law, as well as upon the statute.63

TRESPASS ON
THE CASE.

For injuries

Case is the peculiar and appropriate remedy for injuries to incorporeal hereditaments, and to reversionary interests in real to incorpore and personal property; and in general where the injury is not ments, and the immediate result of an act accompanied with force, but is consequential to it.64

al heredita

consequen

tial injuries.

Besides the cases above mentioned in which this action may be maintained, there are three forms of it which have each of them a distinct character, and on this account as well as their importance, are generally considered as actions by themselves. These are trover, slander, and malicious prosecution, and will be separately considered.

TROVER.

TROVER.

The action of trover may be maintained by any person who When it lies. has either an absolute or special property in goods, for recovering the value of such goods, against another, who having, or being supposed to have, obtained possession of such goods by lawful means, has wrongfully converted them to his own use. In order to maintain it, it is necessary that it should Absolute or appear, 1. That the plaintiff had either an absolute or special property in the goods which are the subject of the action, at the time when they came into the possession of the defendant. right of pos- 2. That the plaintiff had also a right of possesson in the goods. 3. That the defendant has been guilty of a wrongful conversion.65

special pro

perty,

session, and

conversion

necessary.

Absolute

property;

First-Either an absolute or special property is sufficient. Absolute property is where one having the possession of goods, has also the exclusive right to enjoy them, and which can only instances of be defeated by his own act.67 A landlord may maintain trover

it,

Rep. 389. 2 John. Rep. 454. 14 3 East's Rep. 593. 1 Campb. Rep.

John. Rep. 322.

64 Hob. Rep. 134. Str. Rep. 596. 636. 3 Wils. Rep. 403. W. Bl. Rep. 892. 2 Bos. & Pul. Rep. 446.

497. 18 John. Rep. 257.

65 1 Selw. N. P. 1050.
667 Term Rep. 398.
67 Ib. 1 Selw, N. P. 1051.

for trees cut down during the lease, for by the cutting down TROVER
the lessee's interest is determined.68 'An award does not of itself and of its ac-
quisition,
transfer property.69 If one orders goods to be sent to him by a and transfer.
carrier, though he does not name a particular carrier, the mo-
ment they are delivered to the carrier the property is transfer-
red to the purchaser.70 The endorsement and delivery of a bill
of lading by the consignee to another, bona fide, and for a
valuable consideration, passes the property in the goods,
although the endorsee knew that they had not been paid for."1
A verbal gift of a chattel without delivery does not pass the pro-
perty to the donee." If goods are sold to be paid for within a
limited time, after which warehouse rent is to be paid for them,
the property vests in the purchaser at the time of sale.73 Where
one purchases a thing not in existence, but to be made, and
pays for it, the property in it does not vest until delivery.74
After earnest given, the vendor cannot re-sell the goods, unless
the vendee, after being requested, neglects to take them away.75
A bona fide purchaser of goods sold under an illegal distress.
and sale acquires no property in them.76 Where any thing
remains to be done on the part of the seller, as between him
and the buyer, to ascertain the price, quantity" or individuali-
ty of the goods sold before they are to be delivered, the pro-
perty in them is not vested in the purchaser at the sale.79 Tro-

63 Palm. Rep. 327. Cro. Car. 242. See also 12 East's Rep. 209. 1 Bos. & Pul. Rep. 25.

15 East's Rep. 100.

703 P. Williams, 186. 3 Bos. &
Pal. Rep. 582. Bul. N. P. 36. 2
Saund. Rep. 47. d. 1 John. Rep. 9.
15.215.

719 East's Rep. 506.
722 Barn. & Ald. 551.
731 Campb. Rep. 513.
74 1 Taunt. Rep. 318.

75 Salk. Rep. 113.

76 16 John. Rep. 159.

77 12 East's Rep. 614. 13 East's Rep. 522.

78 2 Maul. & Selw. Rep. 397. 5 Taunt. Rep. 176. 617. 1 Marsh. 252. 4 Campb. Rep. 237. 1 Holts. Rep. 18.

79 15 John. Rep. 349. 6 East's Rep. 614. 2 Campb. Rep. 240. 11 East's Rep. 210.

TROVER.

Special property;

it.

ver will lie for the undivided part of a chattel, as three fourths of a ship.80

83

A special property is, where he who has the possession of goods, holds them subject to the claims of other persons.81 instances of Hence this action may be brought by a carrier,82 a factor, or consignee, a pawnee, or other bailee, a trustee, or a sheriff who has actually levied on goods.84 And possession alone, such, for instance, as the finder of a chattel has, is sufficient to support the action against a wrong-doer. 85 The defendant in trover may always show a paramount title in a third person.86

Right of possession must

concur with right of property, the action will not lie.

right of pro

Secondly-Unless the right of possession concurs with the Therefore, if the perty. owner of goods has leased them for a certain term, he cannot have trover against a third person who converts them during the term.87 But where one has the right of possession, the proter it pos- perty draws after it the possession in law, and hence an execu

Property draws af

session.

Conversion necessary.

tor, who never had possession, may maintain trover9 upon the possession of his testator. A mere delivery to a bailee, by which he acquires no interest in the goods, does not change the possession, but the possession of the bailee is the possession of the owner. 89

Thirdly-It must appear that the defendant has been guilty of a wrongful conversion, which is the gist of the action.

50 4 Camp. Rep. 272. 1 Stark. Taunt. Rep. 302. Rep. 121.

81 1 Selw. N. P. 1055.

827 Term. Rep. 392.

83 1 Ld. Raym. Rep. 275.

84 2 Saund. Rep. 47. 6 John. Rep. 195. 12 John. Rep. 403. 2 Taunt. Rep. 302. 11 John. Rep. 149. n. a.

86 9 John. Rep. 362. 11 John. Rep. 529. 13 John. Rep. 284. 14 John. Rep. 128. 5 Taunt. Rep. 759. 15 John. Rep. 207.

87 7 Term. Rep. 9.

88 Latchs. Rep. 214. 7 Term. Rep. 13.

89 11 John. Rep. 285. 2 Saund. 85 2 Saund. Rep. 47. e. d. Rep. 47. b. Term Rep. 393. Str. Rep. 505. 2

7