precluded from interposing a plea in abatement. In the case of Sedgworth v. Overend, 7 T. R. 279, this point was expressly adjudged.

The second exception relates to the question of conversion. It will be recollected, that the plaintiff proved that John Campbell, one of the defendants, entered upon his farm, and after bargaining with Briscoe for the purchase of these slaves, took possession of them by force, without the consent or knowledge of the plaintiff, and for the purpose, as the jury might have found, of appropriating them to his own use. This act, standing alone and unexplained, had unquestionably all the elements of a tortious conversion.

The defendants, however, on the cross-examination of the plaintiff's witness, proposed to prove that Briscoe, at the time of the taking of the property, stated that he came and took the said slaves by the authority of the plaintiff, for the purpose of paying a debt of plaintiff, for which he, the defendant, was security.

No proof aliunde was offered to show that the plaintiff had invested Briscoe with authority to sell these slaves, and it is a clear principle, that even if Briscoe had been introduced as a witness, the fact of his authority could not have been established by his own declarations. In the case of James v. Stookey, 1 Wash. C. C. 330, it was held that the declarations of a person exercising authority, that he possesses it, can never be received as evidence of the fact of his authority. But the counsel for the appellants contended, that if the declarations of Briscoe had been received, they would have shown that Campbell was a bona fide purchaser of this property; that although the sale was made by Briscoe, without authority, that the defendant was not a mere wrong-doer; and that, therefore, a demand and refusal were necessary to maintain the action.

This position can not be sustained. The definition of a conversion, so far as it is applicable to this case, is the wrongful asportation of a chattel, with the intent to appropriate it to the taker's use: Steph. N. P. 2684; and when those two facts are found to exist—that is, the wrongful taking, and the purpose of the defendant to devote the property to his own use the tortious conversion is established, no matter under what impression he may have acted. The question whether a party is to be treated as a wrong-doer and tortious convertor, depends upon the inquiry whether the asportation of the property was unauthorized, and made by him with the intention of appropriating

it to his own use; and not upon the motive by which he was actuated in perpetrating the act. The motive by which a defendant was influenced in converting to his own use the property of another is only material and admissible, when it is introduced to repel an attempt by the plaintiff to recover from him, in an action of trover, exemplary damages. In Cromwell v. Owings, 7 Har. & J. 60, the court of appeals said: "Whenever the goods of a stranger are wantonly taken, or after due notice being given that they are his property, the party injured, if he chooses not to wait, and replevy them from the purchaser after sale, may always attain ample redress, in exemplary damages, in an action of trespass or trover, at the hands of a jury. And in cases of mere mistake, without any intention to do wrong, less than the full value of the goods taken will seldom be recovered.”

In the case of McCombie v. Davies, 6 East, 538, the defendant took an assignment of the tobacco from Coddan, in good faith, under the impression that it was the property of Coddan, and without any knowledge that it had been purchased by him for the plaintiff as a broker. It is true that the defendant refused, upon the request of the plaintiff, to deliver the tobacco to Coddan, as the plaintiff's broker. But Lord Ellenborough did not consider the refusal of the defendant to give the order as required as evidence of a conversion under the circumstances of the case. He placed the conversion upon the ground that the defendant assumed dominion over the property, and took it by the wrongful act of the broker. The counsel for the plaintiff, after insisting that the defendant's refusing to make the transfer was evidence of a conversion, contended that "at any rate the assuming dominion over it, and taking it by the wrongful act of the broker, was a conversion." And Lord Ellenborough said: "The latter was the true ground to put the plaintiff's case upon; and if the case had been so presented to him at the trial, there probably would have been no nonsuit; but it was put upon the ground that the not giving an order for the delivery of the tobacco from the king's warehouse was in itself a conversion, in which I could not concur; not conceiving that the mere not doing an act was a conversion. But taking the case higher up upon principle, I think that the defendant's acts amount to a conversion. According to Lord Holt, in Baldwin v. Cole, the very assuming to one's self the property and right of disposing of another man's goods is a conversion; and certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of

it; for what is that but assisting that other in carrying his wrongful act into effect?"

In Stephens et al., Assignees of Spencer, v. Elwall, 4 Mau. & Sel. 259, it appeared that the bankrupts, after their bankruptcy, sold the goods in question to one Deane, to be paid for by bills on Heathcote, who had a house of trade in London, and for whom Deane bought the goods. Heathcote was in America, and the defendant was his clerk, and conducted the business of the house. Deane communicated to the defendant information of the purchase on the day it was made, and the goods were afterwards delivered to the defendant, and he disposed of them by sending them to America to Heathcote. This was held to be a conversion by the clerk, although he acted with the most perfect good faith, in entire ignorance of the bankruptcy, and exclusively for the benefit of his employer. A demand was made upon him by the plaintiffs two years after the purchase, but the conversion was not placed upon this ground. Le Blanc, J., said there was a conversion by the defendant long before the demand.

The statements and declarations of Briscoe, who was not a party to the suit, were clearly inadmissible. They were obnoxious to all the objections that can be urged against hearsay evidence; but we think, for the reasons we have assigned, that if Briscoe had been introduced as a witness, it would not have been competent for the defendants to have proved the fact which they proposed to establish by his declarations. As that fact, even assuming it to be true, was immaterial, as it did not impose upon the plaintiff the necessity of proving a demand and refusal, it is very clear, we think, on principle, as well as upon the authorities quoted by Mr. Greenleaf in the second volume of his treatise on evidence, section 642, that if the defendant seized upon these slaves and removed them with the intention of converting them to his own use, he was, in legal contemplation, guilty of a conversion, though in what he did he may have acted in good faith, and under the mistaken belief that Briscoe was authorized to sell them.

The opinion of the court below was therefore correct as expressed in the second exception. The ruling of the court in the third exception was also correct, and was not controverted by the counsel for the appellants. It is very clear that the testimony proposed to be offered in that exception was not admissible, without producing the record of the cause to which it referred. Judgment affirmed.

MEASURE OF DAMAGES IN TROVER WHEN OWNER OF SPECIAL INTEREST 19 PLAINTIFF, or plaintiff recovers by right of mere prior possession. One enti. tled to the present possession of chattels may recover in trover against a mere stranger or wrong-doer the full value thereof, with interest from the time of the conversion; but against the general owner, or those claiming under him, such plaintiff can recover only the value of his interest, and if the value of his interest equal or exceed the value of the chattel converted, then to the extent of the value of such chattel only: Ingersoll v. Van Bokkelin, 7 Cow. 670 (lienor); Russell v. Butterfield, 21 Wend. 300 (mortgagee); Davidson v. Gunsolly, 1 Mich. 388 (lienor); Burk v. Webb, 32 Mich. 173 (receiver); Treadwell v. Davis, 34 Cal. 601 (pledgee); White v. Webb, 15 Conn. 302 (mortgagee); Lyle v. Barker, 5 Binn. 457 (pawnee); Schley v. Lyon, 6 Ga. 530 (trustee). In the following cases the former portion of the above principle is applied, that a special owner, or one entitled to the present possession of the converted chattel, may recover full value against strangers or wrongdoers: Turner v. Hardcastle, 11 C. B., N. S., 683 (assignees in bankruptcy); Edmondson v. Nuttall, 17 Id. 280; Swire v. Leach, 18 Id. 479; S. C., 34 L. J. C. P. 150 (pawnee); Alt v. Weidenberg, 6 Bosw. 176 (assignee of pledgee); Mechanics' & T. B'k v. Farmers' & M. B'k, 60 N. Y. 40 (lienor); Cullen v. O'llara, 4 Mich. 132 (administrator); Burk v. Webb, 32 Id. 173 (receiver); Freeman v. Underwood, 66 Me. 229 (lessee); Hill v. Larro, 53 Vt. 629 (lienor); McGowen v. Young, 2 Stew. 276 (life tenant in slaves); Pomeroy v. Smith, 17 Pick. 85 (pledgee); Ullman v. Barnard, 7 Gray, 554 (pledgee); Finn v. Western R. R. Corp., 112 Mass. 524 (consignor of goods in transitu). In the following cases the latter portion of the above general principle is applied, that against the general owner of the chattel or those claiming under him, the special owner, or one entitled to the immediate possession of the chattel, may recover only to the extent of his interest therein, the total recovery not to exceed, at all events, the total value of the chattel: Frost v. Willard, 9 Barb. 441 (factor); Hays v. Riddle, 1 Sandf. 248 (pledgee); Seaman v. Luce, 23 Barb. 240 (sheriff); Spoor v. Holland, 24 Am. Dec. 37, and note (sheriff); Ingersoll v. Van Bokkelin, 7 Cow. 670 (lienor); Chamberlin v. Shaw, 18 Pick. 278, 283; S. C., 29 Am. Dec. 586; Clark v. Bell, 61 Ga. 147 (pledgee); Sheldon v. Southern Express Co., 48 Id. 625 (pledgee); Russell v. Kearney, 27 Id. 96 (life tenant in slave); Case v. Hart. 11 Ohio, 354 (lienor); Compton v. Martin, 5 Rich. L. 14 (lessee); Strong v. Strong, 6 Ala. 345 (life tenant in slave); Warner v. Vallidy, 13 R. I. 483; 21 Am. L. Reg. 552 (vendor); Hurst v. Coley, 15 Fed. Rep. 645 (pledgee). Where the conversion is by an officer acting under a legal writ of attachment or execution against the general owner, he will occupy the same position as if he were the general owner, and be subject to the same measure of damages in an action by the special owner against him for converting the property: Baldwin v. Bradley, 69 Ill. 32; Frost v. Willard, 9 Barb. 441; but not if the writ under which he acts be illegal, for then the special owner will recover full value: Pomeroy v. Smith, 17 Pick. 85; Compton v. Martin, 5 Rich. L. 14.

This rule of the measure of damages depends upon the general principle that the plaintiff in trover is to be compensated, as nearly as can be done by judicial tribunals, for his actual loss. Therefore, where the property is converted by a mere stranger or wrong-doer, and the special owner or one enti tled to possession is or may become liable to the general owner for the value of the property, or for the surplus value above the value of his own special interest, he recovers, in trover for such conversion, full value. But where he is not answerable over to the general owner, as when the property is converted

by the general owner or those claiming under him, the plaintiff recovers merely the value of his own interest. See cases cited supra; Frost v. Willard, 9 Barb. 440; Sheldon v. Southern Express Co., 48 Ga. 625; Sutherland on Dam., secs. 524-526. The rule was recognized and justified on the same grounds as early as Heydon and Smith's Case, 13 Co. 69, in which the better opin. ion was declared to be, "that he who hath a special property of the goods at a certain time shall have a general action of trespass against him who hath the general property, and, upon the evidence, damages shall be mitigated; but clearly the bailee, or he who hath a special property, shall have a gen. eral action of trespass against a stranger, and shall recover all in damages, because that he is chargeable over."

MEASURE OF DAMAGES WHEN CHATTEL MORTGAGEE IS PLAINTIFF.-Where a mortgagee brings trover for the conversion of the chattels mortgaged, the same rule of damages prevails as when a special owner is plaintiff: Manning v. Monaghan, 28 N. Y. 585; Chadwick v. Lamb, 29 Barb. 518; Russell v. Butterfield, 21 Wend. 300; Roberts v. Kain, 6 Robt. (N. Y.) 354; Bailey v. Godfrey, 54 Ill. 507; Becker v. Dunham, 27 Minn. 32; Ward v. Henry, 15 Wis. 239; White v. Webb, 15 Conn. 302. In most of these cases the decision has been grounded upon the principle that special owners can recover in trover against the general owner, or those claiming under him, only the value of their interest in the converted property. But it is to be observed that in the states where these decisions have been rendered the legal title vests in the mortgagee from the time of the execution of the mortgage (Jones on Chat., Mort., sec. 426), and therefore a mortgagee in those states can not be consistently termed a special owner. For this reason the principle, as applied to mortgagees where they hold the legal title, is better stated in Parish v. Wheeler, 22 N. Y. 494. In this case the court, per Comstock, C. J., say: "A mortgagee, having the right of possession before forfeiture, and the absolute legal title afterwards, could sue (at common law) in trover for the conversion of the chattel mortgaged, and, without regard to the amount of his debt, could recover the full value against a stranger guilty of such conversion. But the mortgagor, even after forfeiture, had an equitable right to redeem on payment of the debt. If, therefore, the mortgagee should, in such case, recover the entire value in this form of action, the fund, after satisfying the debt, would belong in equity to the mortgagor, and could be recovered by suit in equity, or in the equitable action of money had and received. And from this it necessarily results that in trover, by the mortgagee against the mortgagor, the damages should not exceed the amount of the debt. This is a conclusion which avoids circuity of remedies. This would be so if the law were administered according to the former system. It is more plainly so now, because under the existing system of procedure legal and equitable remedies are merged." And in a concurring opinion, it was stated by Denio, J., that it would have been correct to have allowed plaintiff, the mortgagee, to have recovered full value against a stranger; "but if he held possession under and by authority of the railroad company, who were plaintiff's mortgagors, then, inasmuch as plaintiff would not be accountable over in consequence of the conversion by the defendant, his recovery should have been limited to the amount of the unpaid balance of his mortgage debt." Thus the application of the principle in this case is based upon the avoidance of circuity in action and upon the administering of actual damage in trover, but not upon the ground that a mortgagee in whom title is vested is merely a special owner. In those states where title does not pass by a chattel mortgage, but the mortgagee merely holds a lien upon the property, if possession should be delivered to the mort

*