A Treatise on the Law of Torts, Or the Wrongs Which Arise Independent Of

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426 THE LAW or 'roa'rs.

(J H A PTE R X V . 426 TRB LAw or TORTS.

waonos IN assrncr 'ro PERSONAL PROPERTY.

The classiﬁcation of property as real and personal is extremely

artiﬁcial, and is governed more by circumstances than by the

nature or inherent qualities of things. The common law idea

of real estate comes from a time and a condition of things when

nearly all that was valued highly, and upon which families were

built up and sustained, was to he found in the freehold estate,

and in those things in the nature of heir looms which, in legal

contemplation, attached themselves to it and passed with it to the heir. The estate held by feudal tenure of the feudal superior, OHAPTER XV. with the castle and mansion house upon it, the deer in the park, the family pictures, the family jewels, the charters of nobility or WRONGS IN RESPECT TO PERSONAL PROPERTY. of, precedence, if any, perhaps the ancestral carriage; anything,

in short, which distinctively pertained to the family as such, and

gained importance and imparted importance as it was pre~er\'ed The classification of property as real and personal is extremely with and held inseparable from that which gave the family its artificial, and is governed more by circumstances than by the chief prominence, that is to say, the landed estate; these were nature or inherent qualities of things. The common law idea the matters of consequence, and these were, in fact as well as in legal designation, the real property until modern times. There of real estate comes from a time and a condition of things when might be temporary interests in land, held perhaps at the will of nearly all that was valued highly, and upon which families were the owner of the freehold, or even for terms of years; there were to beasts raised for the market, and wares in which traders dealt; bnilt np and sustained, was be found in the freehold e1:1tat:.:; but such property was not property of that digniﬁed importance and in those things iu the nature of heir looms which, in legal and character upon which families were based; it had not eon- contemplation, attached tbemsel ves to it and passed with it to the nected with it the same idea of permanence; it was for tempo-

rary support or for trade, and not to be kept and perpetuated iu heir. The estate held by foudal tenure of the tendal superior, families; it was property, but it pertained rather to the person with the castle and mansion houso upon it, the deer in tho park, who for the time owned and controlled it, and who might dispose the family pictures, the family jewels, the charters of nobility or of it to-morrow or himself pass away, than to the family which, in legal contemplation, was perpetual. It was, therefore, not of precedence, if any, perhaps the ancestral carriage; anything, improperly designated personal property in eontradistinction to in short, which distinctively pertained to the family as such, and the real property which was before mentioned.

_ - - — - _.___--vﬁ gained importance and imparted importance as it was pre,er,·ed with and held inseparable from that which gave the family its chief prominence, that is to say, tbe landed estate; these were the matters of consequence, and these were, in fact a.s well as in legal designation, the real property until modern times. There might be temporary interests in land, held perhaps at the will of the owner of' the freehold, or even for terms of yea.rs; there were beasts raised for the market, and wares in which traders dealt; but such property was not property of that dignified importance and character upon which families were based; it had not <,'On nected with it the ea.me idea of permanence; it was for tempo rary support or for trade, and not to be kept and Jlerpetua.ted in families; it was property, but it pertained rather ~the person who for the time owned and controlled it, and who might dispose of it to-morrow or himself pass away, than to the family which, in legal contemplation, was perpetual. It was, therefore, not improperly designated personal property in contradistinction to the real property which was before mentioned•

• Original from D 1 iz by UNIVERSITY OF ICHIG N .... Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google \Vl{0NGS_ TO PERSONAL PROPERTY.

I-Ii WRONGS TO PERSONAL PROPERTY, 427

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In thus classifying certain property as real property the prom- In thas classifying certain property as real property the prom inent idea doubtless is that of permanence in interest and owner- inent idea doubtless is that of pel'naanence in interest and owner ship. But the representative of this permanency was the land, ship. But tho representative of this perma11ency was the land, and the other things which constituted real property connected

themselves with the land, and were real only because of the asso- and the other things which constituted real property connected ciation. The deer in the park were real property only as they themseh-es with the land, and were real only because of the asso were a part of the great estate; the family pictures were chietly ciation. The deer in the park were real property only as they important as they were kept as heir-looms; even the castle and mansion house would lose its value and become a mere temporary were a part of the great estate; the family pictures were cltietly shelter if it could be supposed to be set down upon the land of important as they were kept as heir-looms; even the castle and another and subject to be ordered off at the will of the owner of mansion house would lose its value and become a mere temporary the freehold. Thus a small piece of land, insigniﬁcant in value in itself, might give incalculable value to the structure erected shelter it' it could be supposed to be sot down upon the land of upon it, since it would give local habitation and a permanent another and subject to be ordered off at the will of the owner of abiding place to the family which the building alone, unconnected

with an ownership in the land, could not afford. Therefore, the freeliold. 1.'hus a small piece of lane, insignificant in value when traders and others erected buildings on land in which they in itself~ might give incalculable value to the structure ereC'ted had no freehold, the owner of the freehold was looked upon as npon it, since it would give local habitation and a permanent having property of the substantial and real class, and the owner of the building as having that of the less substantial nature. abiding place to the family which the building alone, unconnected The land was consequently real property, though it might be of with an ownership in the land, could not afford. Therefore, little money value, and the building was personal property, a when traders and others erected buildings on land in which they mere chattel, though its money value might be much greater than the value of that upon which it stood. The distinction still had no freehold, the owner of the freehold was looked upon as exists; the building constitutes a part of the freehold in the one having property of the substantial and real cluss, and the owner case; in the other it is a removable ﬁxture, and is personalty.

The actual or presumed intent on the part of the party attaching of the building as having that of the le!;S substantial nature. achattel to the realty, that it shall constitute apart of the realty, or, The land was consequently real property, though it might be of on the other hand, that it shall remain a chattel, is usually the most little money value, and the building was personal property, a important circumstance to be considered in determining the fact; ‘

‘ Mr. Ewell well says that, “The mere chattel, thongh its money \'alne might be mnch greater weight of modern authority and of than the value of that upon which it stood. The distinction still reason, keeping in mind the excep- exists; the building constitntea a pa.rt of the freehold in the one tions as to constructive annexation admitted by all the authorities to exist, case; in the other it is a removable fixture, and is per::onalty. seems to establish the doctrine that The actual or presumed intent on the part of the party attaching the true criterion of an irremovable

ﬁxture consists in the united applica- a chattel to the realty, that it shall constitute a part of the realty, or, tion of several tests: on the other hand, that it shall remain a chattel, is usually the most “ 1. Real or constructive annexa- important circumstance to be considered in determining the fact;' tion of the article in question to the

realty. 1 Mr. Ewell well says that, "The "I. Appropriation or adaption to "B. Appropriation or adaption to weight of modern authority and of the use or purpose of thut piut of the the use or purpose of that part of the

realty with which it is connected. reason, keeping in mind the exeep. realty with which it is connected.

"8. The intention of the party mak- tions as to constructive l\nnexalion "3. The intention of the p~rty mak ing the annexation to make the ar- admitted by all the HUlhorities to exist, ing the annexation to make the ar ticle a permanent accession to the se('ms to estllblish the doctrine that ticle a permanent accession to the freehold, this intention being inferred the true criterion of an irremovable freehold, this intention being inferred from the nature of the article aﬂlxed, tlxture consist.s in the uniwd applica from t.he nature of the article affixed, the relation and situation of the party tion of several tests: the relation and situation of the party making the annexation, and the pol- "1. Real or constructive annrxn making the annexation, and the pol icy of the law in relation thereto, the tion of the article in quc~Lion to tile icy of the law in relation thereto, t.he structure and mode of the annexation, realty. at.ruct.ure and mode of t.ho annexation,

Original from DI IZed b UNIVERSITY OF MICHIGAN Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 428 THE LAW or TORTS. and if no one were concerned with the question but the party by 428 THE LAW OF TORTS.

whom the annexation was made, it might well be suffered to be controlling in all cases. But as the question of ownership often and if no one were concerned with the question but the party by depends on the question whether a ﬁxture is removable or not,

and men make purchases and accept liens upon property, sup- whom the anne:x;ation was made, it might well be suffered to be posing it to be of that nature, either real or personal, that appear- controlling in all cases. But as the question of O\rnership often ances would indicate, it would be not only impolitic, but in many depends on the question whether a fixture is rcmrn·able or not, cases unjust, to suffer a secret intent to control where appearances would indicate the existence of an intent of a different and men make purchases and accept lieus upon property, sup nature. The law, therefore, usually acts upon the presumed rather posing it to be of that natnr~ either real or personal, that appear than upon any actual intent, and the general rules which govern ances would indicate, it would be not only impolitic, but in many the question of the removability of ﬁxtures are few and simple.

If a building is erected by the owner of the freehold by way cases unjust, to suffer a secret intent to control where appear of improvement thereof, and apparently for permanent use and ances would indicate the existence of au intent of a different enjoyment with it, or if machinery is put up and attached to a

building apparently for like permanent use, in the place where it nature. The law, therefore, usually acts upon the pre&nmeJ rather is put, or if a pump is put in the well, or fence constructed to than upon any actual intent, and the general rules which govern divide off ﬁelds, or any erection whatsoever made which appa- the question of the removability of fixtures are fow a11d simple. rently is calculated to increase the permanent value of the estate for use and enjoyment, a reasonable presumption arises that the If a building is erected by the owner of the freehold by way owner intended to make them a part of the realty, and the law of improvement thereof, and apparently for permanent use and accepts this intent as conclusive, and considers them real estate

from the time they are constructed or aﬁixed. The owner’s deed, enjoyment with it, or if machinery is put up and attached to a mortgage, or lease of the land will convey them as a part of it, building apparently for like permanent use, in the pla<.""e where it and when he dies they pass with the land to his devisee or heir- is put, or if a pump is put in the well, or fonce constructed to at-law. Nor is the particular manner of annexation to the free-

hold specially important;' though structures evidently put up divide off fields, or any erection whatsoever made which appa for a mere temporary purpose, and aﬁixed to the realty in a man- rently is calculated to increase the permanent value of the estate ner indicating no intent that they should be permanent, will of for use and enjoyment, a reasonable presumption arises that the course remain personalty.

On the other hand, a similar erection or attachment by one not owner intended to make them a part of the realty, and the law and the purpose or use for which the accepts this intent as conclusive, and considers them real estate annexation has been made.

“ Of these three tests, the clear ten- from the time they are constructed or affixed. The owner's deed, dency of modern authority seems to mortgage, or lease of the land will convey them as a part of it, beto give pre-eminence to the ques- and when he dies they pass with the ]and to his de\·isee or heir tion of intention to make the article a permanent accession to the freehold, at-law. Nor is the particular manner of annexation to the free and others seem to derive their chief hold specially important;' though structures evidently put up value as evidence of such intention." for a mere temporary purpose, and affixed to the realty in a man Ewell on Fixtures, p. 21, 28. See

McConnell 0. Blood, 128 Mass. 47; ner indicating no intent that they should be permanent, will of ‘Iv course remain personalty.

State Savings Bank 0. Kerchevnl, 6

Mo. 682, 686. On the other hand, ':! similar erection or attachment by one not

' Whether the rolling stock of rail- roads is to be considered a part of the and the purpose or use for which the State Savings Bank "· Kercheval, 6 realty. is a point on which the author- annexation has been made. Mo. 682, 686. ities are greatly at variance. See ;i Of these three tests, the clear ten. 1 Whet.her the rolling stock of rail Minnesota v. St. Paul, etc., R. R. Co., dency of modern authority seems to roads is to be considered a part of the 2 Wall. 609; Williamson 1). N. J. Sou. be to give pre-eminence to the ques t~alty. is a point on which the author

R. R. Co., 29 N. J. Eq. 311; Ewell on tion of Intention to make the nrticle ities are grently at vnriance. See Fixtures, 84, and cases cited. a permanent accession to the freehold, Minnesota "· St. Paul, etc., R. R. Co., _ ___ 7- - ié _ _ __._.——--III and others seem to derive their chief 2 Wall. 609; Williamson tJ. N.J. Sou. value as evidence of such intention." R. R. Co., 29 N. J. Eq. 311; Ewell on Ewell on Fixtures, p. 21, 28. See Fixtures, 84, and cases cited. McConnell e. Blood, 128 Maas. 47;

Original from 19 IZ UNIVERSITY OF ICHIG N - -~ Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google WRONGS T0 PERSONAL PROPERTY. 429 the owner of the freehold might well be presumed to be made WRONGS TO PERSONAL PROPERTY. 429

with the intent of removing it as a chattel. This presumption would be reasonable in most cases, because. if he intended it as the owner of the freehold might well be presumed to be made a permanent annexation, he would lose title to it immediately,

since if he made it a part of the realty, the ownership must pass with the intent ot' removing 1t as a chattel. This pre.mmption to the owner of the realty. Therefore, the person making the would be reasonable in most cases, because, if he inten(le

and which is subject to be recalled at any time, a like presump- Annexations made by a tenant for the more convenient aud tion arises that the licensee intended to preserve his property in profitable enjoyment of his estate for the term, or even by way the structure, and it will remain personal property accordingly.’ of ornament, if not inconsistent with the purpose for which the But there are some cases in which, though the erection is made by one not the owner of the freehold, an intent to retain a estate is leased to him, remain his, and of course remain personal property in the ﬁxtures as a chattel could not be presumed, and property. This is the general rule.• So when a building is others in which the policy of the law could not suffer effect to

be given to it if it actually existed. Thus, if one, though not erected under a mere license gi,·en by the owner of the free'.aold, the owner, is,in possession under an exucutory contract of pur- and which is subject to be recalled at any time, a like presump chase, it is a reasonable presumption that he expects to complete tion arises that the licensee intended to preserve his property in the purchase, and that whatever he attaches to the realty in such

a manner that if it were so attached by the owner of the freehold the structure, and it will remain personal property accordingly.' it would become a part of it, he intends shall be a part of it.’ But there are some cai'es in which, though the erection is So, if one, without license, express or implied, on the part of the made by one not the owner of the freehold, an intent to retain a owner of the freehold, shall enter and make permanent erections thereon, the law will not reward his conduct or encourage others property in the fixtures as a chattel could not be presumed, aml ‘Elm-s 11. Maw, 8 East, 38; S. C. others in which the policy of the law could not suffer effect to

2 Smith Lead. Cas. 228; Lancaster v. to Eve, 5 C. B. (x. s.) 717; Van Ncss c. be given it if it actually existed. Thus, if one. though not

Pacard, 2 Pet. 137; Holmes v. Trem- the owner, is.in possession under an execntory contract of pur

per, 20 Johns. 29; Mcigs’ Appeal, 62 chase, it is & reasonable presumption that he expects to complete Penn. St. 28; O‘Donncll 0. Hitchcock,

118 Mass. 401; Thomas v. Crout, 5 the purchase, and that whate\'er he attnches to the realty in sneh

Bush, 37; Teal!‘ 0. Hewitt, 1 Ohio, a manner that if it were so attached by the owner of the freehold (1:. s.)5l1. it would become a part of it, he intends shall be a part of it.• ' Cowin 0. Cowan, 12 Ohio, (11. s.)

629; Wagner 0. Cleveland, etc., R. R. So, if one, without license, express or implied, on the part of the Co., 22 Ohio, (rt. s.) 568; Rickcr v. owner of the freehold, shall enter a11d make permanent erections

Kelly, 1 Me. 117; Hincklcy 0. Bax-

ter, 18 Allen, 139; Noble v. Sylvester, thereon, the law w!ll not reward his conduct or encourage other~

42 Vt. 146; Wilgus 0. Getting.-i, 21

Iowa, 177; Wcathcrsby 0. Sl(~('|)t'I', 42 1 Elwce ti. Maw, 8 East, 38; S. C. 620; Wa~ncr fl. Cleveland, etc., R. R.

Miss. 732; Fenluson u. Racklitf, 50 2 Smith Lead. Caa. 228; Lancaster o. Co., 22 Ohio, (N. 8.) 563; Ricker "·

Me. 302; Nor. Cent. R. Co. e. Canton Eve, 5 C. B. (l'f. e.) 717; Yao Nl.'!ls "· Kt·lly, 1 lie. 117; Hlnrklt·y "· B:ix. Co., 30 Md. 347. Pacard, 2 Pet. 187; Holmes ti. Trem. tcr, 18 Allen, 189; Noble o. Sylvester, ' See Crane v. Dwyer, 9 Mich. 350. per, 20 Johns. 29: :Meigs' AJlpeal, 62 42 Vt. 146; Wilgus "· Gctting.-1, 21 Peon. St. 28; O'Donnell "·Hitchcock, lows, 177; Wt·ntlwrsby o. Sh·Ppn, 42 118 ?tlnss. 401; Thomas "· Crout, 5 l\li;:s. 732; Fenla~on "· Racklilf, 50 Bush, 37; Teaff fl. Hewitt, 1 Oh lo, Me. 362; Nor. Cent. R. Co.•· Canton (B. 8.) 511. Co., 30 ~Id 847. ' Cowin -. Cowan, 12 Ohio, l1'· a.) 1 See Crane o. Dwyer, 9 llich. 350.

thus unlawfully attached.‘ So, if any one having a right to attach a removable ﬁxture to the freehold owned by another shall so in that of like character, by allowing him to rP.move w1aat he has attach it that it cannot be removed without serious injury to the 1 realty, the law will not suffer him to reserve a right of removal thus unlawfnlly attaehed. So, if any one having a right to attach to the prejudice of the owner of the inheritance.’ a removable fixture t.o the freehold owned by another shall so On the other hand, for similar reasons, if one, without the attach it that it cannot be removed without serious injury to the consent of the owner, shall take the building of another and

remove it upon and attach it to his own realty, or shall take realty, the law will not suffer him t.o reserve a right of removal another’s machinery and put it up in a permanent way in his to the prejudice of the owner of the inheritance.' own mill, he cannot by such unauthorized act, make the personal On the other hand, for similar reasons, if one, without the property of another his own real estate, but the qualities of real and personal property will still be preserved, and the separate consent of the owner, shall take the bnil

It should be added to the foregoing that the parties concerned

may, by agreement between themselves, in due form, give to ﬁx- another's machinery and pnt it up in a permanent way in his tures the legal character of realty or personalty, at their option, own mill, he cannot by such ummthorized act, make the personal and the law will respect and enforce their understandings where- property of another his own real estate, but the qualities of real ever the rights of third persons will not be prejudiced, or any

general policy of the law violated. Thus, a house constituting a and personal property will still be preserved, and the separate part of the realty may be iiiortgugcd separate from the land, or ownership will remain.•

sold separate from it, and the mortgage or sale will be perfectly It should be add~d to the foregoing that the parties concerned valid, if made in such form as to be suliicient under the Statute of Frauds as a transfer of an interest in lands. But here the may, by agreement between themselves, in dne form, give t.o fix rights of third persons might possibly intervene; for if the owner tures the legal character of realty or personalty, at their option, of the land were to sell it to one ignorant of what had been done

respecting the ﬁxture, and without implied notice of it, the pur- and the law will respect and entorc.-e their understandings where

' Mr. Ewell collects the cases of this ever the rights of third persons will not be prej udk'CCI, or any nature in his treatise otfthe Law of general policy of the law violated. Thus, a house constituting a Brastow, 4 Pick. 310; Sccger 0. Pet- tit. 77 Penn. St. 437. part of the realty may be mortga~od separate from the land, or Fixtures, Ch. 2. This rule, in Mc- sold separate from it, and the mortgage or sale will be perfoctly Kiernan 0. Hesse, 51 Cal. 594. was ap- valid, if made in such fo1·m as to be sufficient under tho Statute plied to erections made without permission, on the lands of the United of Frauds as a transfer of an interest in lands. llut here the States. Compare Pcnnybccker v. rights of third persons might pos:;iuly intcr,·ene; for if the owner

McDougal, 48 Cal. 160.

‘The injury, however, which will of the land were to sell it to one ignorant of what had been done preclude removal, when the structure respecting the fixture, and without implied notice of it, the pur-

is erected or attached by a tenant or

licensee, must be something more 1 than merely nominal. See Avery v. Mr. Ewell collects the cnses of this Bra.~tow, .f Pick. 810; Set-ger •·Pet.

Chcslyn, 8 Ad. & El. 75; Whiting v. nature in his treati•e mtthe LRw of tit. 77 Penn. St. 437.

‘Cochran 1:. Flint, 57 N. H. 514, Fixtures, Ch. 2. This rule, in :&le. •Cochran "· Flint, 67 N. H. G14,

544. L.ann,J.¢ “The rule is, and this Kiernan "· Hesse, In Cal. G94. was ap. G44. LAOD, J. c "The rule is, and this is eh-incntary, that the movable must pliecl to erections made without per Is elt·mcntary, that the movable must be uﬁlxetl by the owner of it. and mission, on the lands of the Cnited be nfilxCll by the owner of it, aucl afllxed in the course of his general States. Compare Pennybecker "· amxed in the course of his general use and occupation of the immova- McDougal, 48 Cal. 160. use aml occupation of the immov11- ble; and I venture the remark that •The injury, however, which will ble; and I venture the remark tbnt nola case can be found where it is preclude removal, when the structure held that the owner would be divest- nol a case can be found where it is

ed of his title if the movable thing is is erected or attached by a tenant or held that the owner would be divest· aﬂlxed without his consent, either ex- licensee, must be something more ed of his title if the movable thing is press or implied. D'Eyncourt 0. than merely nominal. See Avery"· aftb:ed without bis consent, either ex.

Gregory, L. R 8 Eq. 882, 894." Cheslyn, 3 Ad. & El. 76; Whiting 11. press or implied. D'Eyncourt "· Gregory, L. R. 8 Eq. 882, 894."

he would have a right to suppose it constituted a part.‘ The owner of machinery may consent that it be put up in the mill chaser wonld take the land with the house as a part of it, because of another under a contract of conditional sale, and with the understanding that his title therein as personalty shall be retained; he would ha\•e a right to suppose it constituted a. part.' The and this understanding will also be enforced as against the owner owner of machinery may consent that it Le put up in the mill of the land, or any other person who has not been deceived by

appearances into a purchase of the land or taking a mortgage of another under a contract of conditional sale, and with the upon it, on the supposition that his deed or mortgage covered the understanding that hie title therein as personalty shall be retn.i ne

subject of ﬁxtures as they may see ﬁt. of the land, or any other person who has not been deceived by

When a licensee has a right to remove ﬁxtures, he will lose appearances into a purchase of the ]and or taking a mortgage

them unless he removes them within a reasonable time, to be upon it, on the supposition that his deed or mortgage c~overcd the determined by the circumstances, after his license has been revoked.’ A tenant must take away his removable ﬁxtures at or machinery as well as the ]and and building.' Landlord and ten before the expiration of his term, or at least within such reason- ant may also, by the ]ease or other agreement, control the whole able time thereafter as he may, by consent or otherwise, lawfully

continue in possession.‘ But if the tenancy is for an uncertain subject of fixtures as they may see fit. period, as where it is for life or at will, ﬁxtures may be removed When a licensee has a right to remove fixtures, he will Jose within a reasonable time after the tenancy is ended. If the them unless he removes them within a reasonable time, to be tenant commits an act of forfeiture, this is a forfeiture of his

interest in the land only;' but when enforced against him, and determined by the circumstances, after his license has been possession obtained, by ejectment or other proceeding, his right revoked.1 A tenant must take away his removable fixtures at or ' Burk 0. Hollis, 98 Muss. 55; Poor before the expiration of his term, or at least within such reason 0. Oakman, 104 Mass. 809; Gibbs u.

Estey, 15 Gray, 587; Richardson 0. able time thereafter as he may, by consent or otherwise, lawfully Copeland, 6 Gray, 536. continue in possession.• But if the tenancy is for an uncertain

' Crippen 0. Morrison, 18 Mich. 28,

and cases cited; Shell 0. Haywood, period, as where it is for life or at will, fixtures may be removed

16 Penn. St. 523; Piper 0. Martin, 8 within a reasonable time after the tenancy is e11

Cross 0. Marston, 17 Vt. 583; Russell interest in the land only;• but when enforced against him, and v. Richards, 10 Me. 429; Hilborne 0. posi::ession obtained, by ejectment or other proceeding, his right

Brown, 12 Me. 162; Smith v. Benson,

1 Hill, 176; Pierce 0. Emery, 82 N. ' Burk "· Hollis, 98 Mass. 55; Poor which, If attached by the mort .~a~cor H. 485; Haven v. Emery, 33 N. H.643; himself, would become a pa.rt of it, Wood 0. Hewett, 8 Q. B. 913. In e. Oakman, 104 Masa. 809; Gibbs "·

Massachusetts the strict rule is ap- Estey, 15 Groy, 587; Richardson "· they will, when so attached, become plied. that whatever the understand- Copeland, 6 Gray, 536. realty, B'l as to be covered by the I ien ing between the mortgageor and one •Crippen "· :Morrison, 18 :Mich. 28, of nn exist in$ mortgage. Hunt"· Bay, who attaches to the realty ﬁxtures and cases cited; 8hell "· Haywood, etc. Co., 97 jtass. 279; Clary"· Owen, which, if attached by the mort_~_r:igeor 16 Peno. St. 523; Piper fl, Mnrtin, 8 15 Grny, 522; Bartholomew "· Ham himself, would become a part of it, Penn. St. 006; Ford"· Cobb, 20 N. Y. ilton, 105 Mass. 230. they will, when so attached, become 844; Mott "· Palmer, 1 N. Y. 564; 1 Antoni c. Belknap, 102 Mnss. 193; realty, so as to be covered by the lien Cross "· :Marston, 17 Vt. 533; Ru~ell Ombony 1'. Jones, 1U N. Y. 2a-1, ~;:ti. ofan existin mortgage. Hunt v. Bay, "·Richards, 10 Me. 429; Hilbome "· Sl1 e Overton"· Williston, 31 Penn. St. etc. Co., 97 gnss. 279; Clary v. Owen,

15 Gray, 522; Bartholomew v. llam- Brown, 12 lie. 162; Smith "· Benson, lii5; Sullivan "· Carberry, 67 lie. 5:11.

ilton, 105 Mass. 239. 1 Hill, 176; Pierce 11. Emery, 82 N. ~ Penton t:. Hobart, 2 E1l.:t, 88;

» ‘Antoni 1:. Belknup, 102 Mass. 193; H. 483; Haveo1'.Emery,38 N. H.66; Wceton 1'. Woodcock, 7 ?ti. & W. 14;

Ombony 0. Jones, 19 N. Y. 234, 2:28. Wood e. Hewett, 8 Q. B. Uta. In Lyde "· Russell, 1 Ji. & Ad. 804; Om; See Overton v. Willis-ton, 81 Penn. St. Massachusetts the strict rule is ap bony"· Jones, 19 N. Y. 2:ll; Conner 155; Sullivan e. Carberry, 67 Me. 531. plied. th1&t whatever the underst:md. "· Coffin. 2'.? :X. II. 538. 541. ‘ Penton 1:. Robart, 2 East, S8; ing between the mortgageor and one •~cc Davis"· Eyton, 7 Bing. 154. Weeton 0. W00(lCOCl{, '7 M. & W. 14; who auaches to the realty tlxturea

Lyde 0. Russell, 1 B. & Ad. 394; Om:

bony v. Jones, 19 N. Y. 234; Conner

v. Coﬁin. 22 N. ll. 538. 541.

‘ See Davis v. Eyton, 7 Bing. 154.

to such ﬁxtures as are not already removed, is gone.‘ It has 439 THE LAW OF TORTS.

been held, in some cases, that _one who accepts a renewal of a. lease without stipulating to reserve his rights in existing ﬁxtures, to each fixtures as are not already removed, is gone.1 It has abandons his right to them as he would on surrendering posses- been held, in some cases, that .one who accepts a renewal of a sion without removing them; ’ but this seems unreasonable, and has been questioned.‘ lease without stipulating to reserrn his rights in existing fixtures, All removable ﬁxtures, being personalty, are subject to all the abandons his right to them as he would on surrendering posgeg.. rules of law which govern that species of property, even though sion without removing them;' bnt this seems unreasonable, they still continue attached to the freehold. Still, if the owner is injured in respect to his rights therein, while this annexation and has been questioned.• continues and while he is still in possession of the land, the All removable fixtures, being 11ersonalty, are subject to all the wrong should be considered an injury in respect to his posses-

sion of the realty, and trover for the ﬁxture will not lie.‘ But rules of Jaw which govern that species of property, even though all ﬁxtures become personalty when severed, whether the act of they still continue attached to the freehold. Still, it' the owner is severance is rightful or wrongful.‘ injured in respect to his rights therein, while this an11exation ' Weeton v. Woodcock, '7 M. & W.

14: Minshall v. Lloyd, 2 M. & W. continues and while he is still in possession of th~ land, the 450; Pugh e. Arton, L. R. 8 Eq. Cas. wrong should be considered an injury in respect to his posse8- 626; Whipley v. Dewey, 8 Cal. 36; sion of the realty, and trover for the fixture will not lie.• Bnt Kntter e. Smith, 2 Wall. 491. See

Keogh '0. Daniel], 12 Wis. 163. all fixtures become personalty when severed, whether the act of * Merritt v. Judd, 14 Cal. 59; Lough- severance is rightful or wrongful.' ran 0. Ross, 45 N. Y. 792.

' Kerr 1:. Kingsbury, 88 Mich.

‘Minshall 0. Lloyd, 2 M. & 1 Weeton "·Woodcock, 7 M. & W. duced It, and when the master of the

450; Mackintosh v. Trotter, 3 M. 14; Minshall "· Lloyd, 2 M. & W. sword found his debt to the Jew W. 184. 450; Pugh "· Arton, L. R. 8 Eq. Cas. usurer falling due, it might be a ‘In the rules respecting ﬁxtures 626; Whipley 11. Dewey, 8 Cal. 36; question whether he should be paid we note the gradual departure from Kutter '" 8mith, 2 Wall. 491. Bee in C••in or in blows; whether he notions which had their origin in a Keogh"· Daniell, 12 Wis. tO:t should be robbed and uriven from the system which had little in common •Merritt"· Judd, 14 Cal. l>9; Lough land, or spared 88 a necessary but with modern enterprise‘ and thrift. ran 11. 4-IS N. Y. 792. As has already been said, land for- Ross, hated convenience. The idea grew

merly was of chief importance; com- •Kerr "· Kingsbury, 88 Mich. up very slowly that the non.land merce was subordinate to martial ' 1tlinehall "· Lloyd, 2 M. & W. owner, who would mnke hie Industry prowess. The Jew, who best repre- 4l>O; Mackint.osh "· Trotter, 8 M. & availaLlc by the improvement of sented the movable property of the W. 184. lands, should be encouraged to do so country, prudently hid his jewels and • In the rules respecting fixtures by saving to him an ownership in the his gold in his unpretending and we note the gradual departure from buildings he attached to the soil. The mean habitation, or secreted them notions which had their origin in a old Iden reeo.:.?:nized but faintly a dis upon his person sewed into the old system which had little in common tinct ownership in the shop which clothes which appeared to express with modern enterprise• and thrift. the tenant put upon the land, and if misery and poverty. His wealth did it was at all of a substantial nature, not make him respected, but he was As has already been said, land for.

despised for the qualities which pro- merly was of chief Importance; com. the landlord would be likely to claim ta»? mcrce wa1:1 subordinate to mnrtial it as having bCcome a part of the soil duced it. and when the master of the prowess. The Jew, who best repre. by being affixed to it. A hundred sword found hi debt to the Jew sented the movable property of 1he yea.rs ago it was scarcely settled that usurer falling due, it might be a country, prudently bid his jewels and an agricultural tenant might remove question whether he should be paid hie gold in hie unpretending and his fixtures at the end of his term, in coin or in blows; whether he mean habitation, or sccre1cd them and the idea was still prevalent that should be robbed and driven from the upon his person sewl'd Into the old to entitle any tenant to retain M per. land, or spared as a necessary but clothes which appeared to express sonalty the structure he put up for hated convenience. The idea grew

up very slowly that the non-land- misery anti poverty. Hie wealth did use in connection with the renlty, he

owner, who would make his industry not make him respected, but he was should abstain fmm putting it on available by the improvement 01 despised for the qualities which pro- foundations that seemed to be perma.

lands, should be encouraged to do so

by saving to him an ownership in the

buildings he attached to the soil. The

old idea re(:0_'_'nlZ(3d but faintly a dis-

tinct ownership in the shop which

the tenant put upon the land, and if it was at all of a substantial nature, Original from the landlord would be likely to claim DI IZed b it as having become a part of the soil UNIVERSITY OF MICHIGAN by being atﬁxed to it. A hundred -· --- ·- years ago it was scarcely settled that Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

an agricultural tenant might remove

his ﬁxtures at the end of his term,

and the idea was still prevalent that

to entitle any tenant to retain as per-

sonalty the structure he put up for

use in connection with the realty, he

should abstain from putting it on

foundations that seemed to be penna-

_ ___ _ ~_. _' __- WRONGS TO PERSONAL PROP]-JIRTY. 433

Betterments. The laws known as betterment or occupying WRONGS TO PERSONAL PROPERTY. 433

claimant laws, establish a peculiar species of property in those entitled to the beneﬁt of their provisions. The purpose of these :Betterments. Tho laws known as betterment or occupying laws is to do equity as between the party who has erected build-

ings of a permanent character, or made other improvements, claimant laws, establish a peculiar species of property in those upon lands which at the time he supposed were his own, but entitled to the benefit of their provisions. The purpose of these which are recovered by another on claim of paramount title. At laws is to do equity as between the party who has erected build the common law the owner, in recovering the land, would become entitled to the improvements also. The laws mentioned have ings of a permanent character, or made other improvements\ changed this by requiring the owner, after establishing his title, upon lands which at the time he supposed were his own, bnt to pay for the improvements as a condition of being put in pos- which are recovered by another on claim of pa.ramonnt title. At session, and by conﬁrming the occupant in possession, if payment is declined. While the right of election remains, the right the common law the owner, in recovering the land, would bi:>come of the occupant has some of the qualities of a lien and some of entitled to the improvements alev. The laws mentioned have a conditional title; but his remedies for wrongs would obviously changed this by requiring the owner, after establishing his title, be those of an occupant of the realty.

Sidewalks, etc. Sidewalks constructed by the owner of urban to pay tor the imp1"0vements as a condition of being pnt in pos property in front of his lot, or curbstones, etc., planted there by session, and by confirming the occupant in possession, if pay him, are his property, whether the title to the soil in the street

is in him or not. While a sidewalk remains it is a part of the ment is declined. While the right of election remains, the right

1ealty;‘ but when any such structure is taken up, the materials of the occupant has some of' the qualities of a lien and some of become personalty, and trespass (le bonis or trover will lie if the a conditional title; bnt his remedies for wrongs would obviously city authorities, or individuals, unlawfully appropriate them.’

Right to Crops. Growing crops are presumptively the prop- be those of an occupant of the realty.

erty of the owner of the soil; but this is only a presumption, and often proves to be unfounded. A more general rule is that Sidewalks, eto. Sidewalks constructed by the owner of urban nent. With the vast increase in per- it so is irresistible, but it does not be- property in front of his lot, or curbstones, etc., planted there hy sonai property which has taken place him, are his property, whether the title to the soil in the street within a century, the artiﬁcial dis- tinctions between realty and person- is in him or not. While a sidewalk remains it is a part of the alty are being gradually put aside or 1ealty; 1 but when any such structure is taken up, the materials modiﬁed, and those only are strictly

adhered .0 which have solid grounds become personalty, and trespass de boni.9 or trover will lie if the for their support. Cities grow upon city authorities, or individuals, unlawfully appropriate them.'

leased grounds, and substantial structures for houses and shops are, as Right to Crops. Growing crops are presumptively the prop between landlord and tenant, the per- erty of the owner of the soil; but this is only a presumption, sonal estate of the latter. The house becomes a part of the land if atiixed and often pro\·es to be unfounded. A more general rule is that

to the land by the owner, because then the inference of intent to make nent. With the vast increase in per. it so is irresistible, but it does not be. come a part df it when aﬂixed by the sonal property which has taken plsco come a part of It when afftxe.l by the tenant, because the difference in own- within a century, the artificial dis. tenant, because the difference in own. ership of house and land will prevent tinctlons between realty and person. en;hip of house and land will prevent the merger which is necessary to alty are being gradur.Ily put aside or the merger whicb is necessary to their becoming one in contemplation modided, and those only are strictly ·their becoming one In contemplation of law. The tenant's supposed in- adhered . o wbich have solid grounds of law. The tenant's suppo!'cd in tent to keep separate as personal for thdr support. Cities grow upon tent to keep separate 88 personal chattels the boards, the bricks, etc., leased grounds, and substantial struc which he builds into the house, is chattels the boards, the bricks, etc.,

respected and is conclusive. tures for houses ancl shops arc, as which ho builds into the houiie, ls

' Rogers v. Randall, 29 Mich. 41. between landlord and tenant, the per. respected and is conclusive.

' Muzzey 0. Davis, 54 Me. 861. See sonal estate of the latter. The house 1 Rogers "· Kandall, 29 Mich. 41.

Rogers o. Randall, 29 Mich. 41. becomes a part of the land If affixed 'Muzzey"· Davis, 64 }le. 861. See

28 t.o th6 Jand by the owner, because Rogers c. Randall, 29 Mich. 41. then the inference or intent to make 28

Original from UNIVERSITYO FM ICHIGA N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 434 crns LAW or roars. growing crops are the property of the person who rightfull_v has 434 THE LAW OF TORTS.

planted and grown them. Therefore, crops grown by a tenant are his property. He may sell or mortgage them as such while growing crops are the property of the person who rightfully has they are growing, and he may harvest and appropriate them

when ripened.‘ The exception to this general statement is this: planted and grown them. Therefore, crops grown by a tenant that if the tenant shall sow or plant crops which, in the ordinary are his property. He may sell or mortgage them as such while course of nature, will not ripen during his term. he will lose they a.re growing, and he may harvest and appropriate them them. If the rule were otherwise, he would be enabled, by his 1 own act and without the consent of the lessor, to prolong beyond when ripened. The exception to this general statement is this: the duration of his term his possession of the land planted.’ that if the tenant shall sow or plant crops which, in the ordinary But where the duration of the lease is uncertain, as where it is course of nature, will not ripen during his term. he will lose a lease at will, or for the life of some person designated, or its duration depends upon some contingency, and it is terminated them. If the rule were otherwise, he would be enabled, by his otherwise than by the voluntary act of the tenant himself, the own act and without the consent of the lessor, to prolong beyond tenant or his personal representative is entitled to the growing

crops as e1nblements,' and may enter upon the land to cultivate the duration of his term his possession of the land planted.' them and to remove them when ready for harvest. The landlord, But where the duration of the lease is uncertain, as where it is if he refuses to recognize this right and excludes him, is liable a lease at will, or for the life of some person designated, or its on the special case; and if he harvests the crop and appropriates

it to his own use, he may be sued either in trespass or trover for duration depends upon some contingency, and it is terminated the value.‘ So one who sows crops on the land of another under otherwise than by the voluntary act of the tenant himself, the a license has rights after the license is revoked corresponding to t.enant or his personal repre1_1.entative is entitled to the growing those of a tenant at will whose estate has been terminated by the landlord.‘ Wvhere crops are raised “on shares,” the owner crops aa emblementl',' and may enter upon the land to cultivate of the land and the person raising them are tenants in common them and to remove them when ready for harvest. The landlord, of the crop until it has been harvested and divided.’ Trees,

' Doremus v. Howard, 28 N. J. 390; if he refuses to recognize this right am] excludes him, is 1iahle

Brown 0. Turner, 60 Mo. 21; Clark o. on the special case; and if be harvests the crop and appropriates Harvey, 54 Penn. St. 142; Fobes u. it to his own use, he may be sued either in trespass or tro\·er for Shattuck. 22 Barb. 568.

' Bain 1:. Clark, 10 Johns. 424; Har- the value.• So one who sows crops on the lnnd of another under ris v. Carson, 7 Leigh, 632; Kingsbury a license has rights after the license is revoked corresponding to u. Collins, 4'Bing. 202. those of a tenant at will whose estate has been terminated by ‘ Bevans o. Briscoe, 4 Har.& J . 139;

Davis v. Thompson, 13 Me. 209; Davis the landlord.• Where crops are raised "on shares," the owner 0. Brocklebank, 9 N. H. 73; 0rland's of the land and the Jlerson raising them are tenants in common

Case, 5 Co. 116.

‘ Stewart 0. Doughty, 9 Johns. 108; of the crop until it has been harve::;tcu and dh·itled.' Trees,

Forsythc 1;. Price, 8 Watts. 282; Rob-

inson '0. Kruse, 29 Ark. 575; Harris v. 1 Doremus"· Howard, 28 N. J. 390; Jencks ti. Smith, 1 N. Y. 00; Harris Frink, 49 N. Y. 24.

' Smith 0. J enks, 1 Denio, 580; Brown "· Turner, 60 Mo. 21; Clark "· "· 1''rink, 49 N. Y. 24.

_~ _ -- H1nvcy, M Penn. Mt. 142; Fobes "· • D1rniels t'. Dnnlcls, 7 M11ss. 136;

Jencks v. Smith, 1 N. Y. 90; Harris Shattuck. 22 Blll'b. 568. Delaney l'. Root, 99 ~illSR . 5!6; Foote

0. Frink, 49 N. Y. 24. 1 Bain"· Clark, 10 Johns. 424; Har. "· Colvin, 3 Johns. 216; Bradish "· ‘Daniels r. Daniels, 7 Mass. 136; ris "· Carson, 7 Leigh, 632; Kingsbury Schcuck, 8 Johns. 151; Carter "· J11r Delaney v. Root, 99 Mass. 546; Foole "·Collins, 4·Bing. 202. vis, 9 .John. 143; Putnam "· Wise. 1 v. Colvin, 3 Johns. 216; Bradish 0. • B~vans "· Briscoe, 4 Har. & J. 139; Hill, 234; Taylor t'. Bra1llry, 39 N. Y.

Scbenck, 8 Johns. 151; (Iarlcr v. Jar- Davis 11. Thompson, 13 Me. 209; Davis 129; Hnrris t'. Frink, 49 N. Y. 24; vis, 9 John. 143; Putnam o. Wise.1 "· Brocklebank, 9 N. H. 73; Orland's Moulton "· Rouiuson, 27 N . H. S:iO; Hill, 234: Taylor c. Bradley, 39 N. Y.

129; Harris v. Frink, 49 N. Y. 24; Case, 5 Co. 116. Daniels "· Brown, 34 N. H. 4M;

Moulton v. Robinson, 27 N. H. 550; t Stewart"· Doughty, 9 Johns. 108; Hatch "· Hart, 40 N. H. 93; Carr c.

Daniels 0. Brown, 34 N. H. 454; Forsythe "· Price, 8 Watts. 282; Rob Dodge, 40 N. H . 403 ; Hurd r. Unr.

Hatch v. Hart, 40 N. H. 93; Carr 0. inson "· Kruse, 29 Ark. 575; Harris fl. ling, 14 Vt. 2l4; Betts "· Ratliff. 5()

Dodge, 40 N. H. 403; llurd 1:. Dar. Frink, 49 N. Y. 24. Miss. 561; Doty"· Heth, 52 Miss. 5:i0; ling, 14 Vt. 214; Belts 1:. Ratliff, 56 • Bmilli e. Jenks, 1 Denio, 580; Briggs "· Thompson, 9 Penn. St. 338;

Miss. 561; Doty e. Helh, 52 Miss. 530;

Briggs 0. Thompson, 9 Penn. St. 338;

• Original from 19 IZ UNIVERSITY OF ICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google waonos T0 PERSONAL PROPERTY. 435 plants and crops sowed or planted on land by a stranger to the WRONGS TO PERSONAL PROPERTY. 435 title, and without authority, belong to the owner of the soil.‘

Wild Animals. There is no property in wild animals until

they have been subjected to the control of man. If one secures plants and crops sowed or planted on land by a stranger to the and tames them, they are his property; if he does not tame title, and without authority, belong to the owner of the soil.'

them, they are still his so long as they are kept conﬁned and

under his control.’ In the case of wild bees, those rules are Wild AnimaJ.a. There is no property in wild animals until somewhat qualiﬁed. Bees have a local habitation, more often in a tree than elsewhere, and while there they may be said to be they ha,·e been suqjected to the control of man. If one secureB within control, because the tree may at any time be felled. But and tames them, they are his property; if be does not tame the right to cut it is in the owner of the soil, and, therefore, such

property as the wild bees are susceptible of is in him also. A them, they are still his so long as they are kept confi11ed and hunter’s custom may recognize a right to the tree in the ﬁrst under his control.' In the case of wild bees, these rules are ﬁnder, but the law of the land knows nothing of this, and he somewhat qualified. Bees have a local habitation, more often will be a tl'esp:1sset‘ if, without permission, he enters upon the land to cut it.‘ Even a license given by the owner of the soil to in a tree than elsewhere, and while there they may he said to be enter and cut the tree may be revoked at any time before it has within control, because the tree may at any time be felled. But been acted on.‘ But if the bees have once been domesticated the right to cut it is in the owner of the soil, and, therefore, snch and have then escaped, the loser retains his property therein, and may reclaim them if he pursues after them with reasonable property as the wild bees are susceptible of is in him also. A promptness.‘ hunter's custom may recognize a right to the tree in the first

As regards beasts of the chase, the English rule is that if _the

hunter starts and captures a beast on the land of another, the finder, bnt the law of the land knows nothing of this, and he

Alwood v. Ruckman, 21 Ill. 200. But 9. Mason, 7 Johns. 16; Buster r. New- will be a trespasser if, without permission, he enters npon the the relation of landlord and tenant land to cut it.• Even a license given by the owner of the soil to may exist, although the rent is to be paid by a portion of the crop, in enter and cut the tree may be revoked at any time before it ·has which case the parties are not tenants been acted on.' But if the bees have once been domesticatl'd in common of the crop raised. Dixon and have then escaped, the loser retains his property therein, and 0. N iccolls, 39 Ill. 872.

‘Ewell on Fixtures, 64; Simpklns may reclaim them if he pursues after them with reasonable v. Rogers, 15 Ill. 397; Mitchell 0. promptness.•

Billingsley, 17 Ala. 391; R».-id v. Kirk,

12 Rich. 54: Madigan 0. McCarthy, As regards beasts of the chase, the English rule is that if _the

108 Mass. Rep. 876; S. C. 11 Am. 371. bunter starts and captures a beast on the land of another, the

‘Amory 0. Flynn, 10 Johns. 102;

Rex v. Brooks, 4 C. & P. 131; Regina

v. Shickle, L. R. 1 C. C. 158: S. C. 11 Alwood "· Ruckman, 21 Ill. 200. Bnt e. Mason, 7 .Johns. 16; Bl1ster r. New.

Cox, C. C. 189; Commonwealth 0. the relation of landlord and tenant kirk, 20Johns. 75: Ferguson"· Miller,

Chace, 9 Pick. 15. may exist, although the rent is to be 1 Cow. 24.':J; Idol r.. J onl!8, 1 Dev. 162;

‘Merrill 0. Goodwin, 1 Root, 209; paid by a portion of the crop, in Cock r. Weatherby, ti 8. & M. 333. Pierson 0. Post, B Gaines, 175; Gillet which case the parties are not tenants 'Ferguson "· Miller, 1 Gow. 243. kirk, 20 Johns. 75: Ferguson v. Miller, in common of the crop raised. Di.J:on See Adams f'. Benton, 4a Vt. ao. 1 (1ow.2-13; Idol v.Joncs. 1 Dev. 162; "· Niccolls, 39 111. 872. 1 Golf 1". Kilts, 15 Wend. 550. The Cock r. Weatherby, 5 S. & M. ' Ewell on Fixtures, 64; Simpkins right, howe\·er, might be of little ‘Ferguson 0. Miller, 1 (low. 243. 1'. Rogers, 15 Ill. 397; M itcbell "· value if they were found on the land See Adams 1". Benton, 43 Vt. 30. ti. of 1rnother who should refuse to per ' Gull‘ r. Kilts, 15 Wend. 550. The Billingsley, 17 Ala. 391; Rt:id Kirk,

right, however, might be of little 12 Rich. 54: )fadigan "· McCarthy, mit the pursuer to enter and rPclalm value if they were found on the land 108 Mass. Hep. 376; S. C. 11 Am. 371. them. Possibly it might be held-:ts of another who should refuse to per- •Amory 1'. Flynn, 10 Johns. 102; we think it certainly ougbt to bc mit the pursucr to enter and reclaim Rex 1'. Brooks, 4 C. & P. 131; Regina that the owner of the bees might them. Possibly it might be held—:is ii. Sbickle, L. R. 1 C. C. 158; 8. C. 11 enter and retake them, if he col11d do we think it certainly ought to bc—- Cox, C. C. 189; Commonwealth "· so without doing an injury to the that the owner of the bccs might Chace, 9 Pick. Ui. land; but the lnw would giv:! no im enter and retake them, if he could do • Merrill "· Goodwin, 1 Root. 20!); plied license to cut a tree for the so without doing an injury to the Pierson •·Post., 8 Caines, 175; Gillet purpose. land; but the law would give no im-

plied license to cut a tree for the

purpose.

Original from D 11 e b UNIVERSITY OF MICHIGAN Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 436 THE LAW or TORTS. property in him is in the owner of the land.‘ Under the civil 436 THE LAW OF TORTS.

law the property passed to the captor,’ and such is believed to be the recognized rule in America even when the capture has property in him is in the owner of the land.1 Under the ch-il been effected by means of a trespass on another’s land.’ law the property passed to the captor,• and such is belie\•ed to How Wrongs may be Done. The methods in which one may be wronged in respect to his ownership of personal estate are be tho recognized rule in America even when the capture has the following: 4 been effected by means of a trespass on another's land.'

1. By the direct application of force, injuring or destroying it, or disturbing the owner in his possession. How Wrongs may be Done. The methods in which one may

2. By indirect injuries, whether through negligence or of

intent. be wronged in respect to his ownership of personal estate are

3. By converting the property to the use of the wrong-doer. the following: 4. By failure to respond to any obligation of bailment in 1. By the direct application of force, injuring or destroying respect to it.

5. By neglect to restore possession to the owner when it has it, or disturbing the owner in his possession. been acquired without his consent, or when a possession once 2. By indirect injuries, whether through negligence or of rightful has become wrongful by failure to comply with a lawful

demand to surrender it to the owner. intent.

Trespass to Personalty. The ﬁrst of these wrongs is techni- 3. By converting the property to the nse of the wrong-doer. cally known as a trespass. A trespass to property consists in 4. By failure to respond to any obligation of bailment in the unlawful disturbance by force of another’s possession. There-

fore, that is not a trespass which consists merely in some wrong respect to it. done to property by one to whom, for any purpose, the posses- 5. By neglect to restore possesRion to the owner when it has

sion has been transferred by the owner, and who at the time of been acquired without his consent, or when a possc~sion once the wrong was lawfully holding it.‘ But a possession obtained by fraud and for the very purpose of the wrong, is not a. lawful rightful has become wrongfnl by failure to comply with a lawful possession, and an injury by force, while it continues, must be demand to surrender it to the owner. deemed a trespass on the possession of the owner.‘

The possession disturbed by a trespass may be either, 1, that Trespass to Personalty. The first of these wrongs is techni of a general owner of the property; or, 2, that of one having

a special property therein as mortgagee, bailee, or oﬁicer;' or, cally known as a trespass. A trespass to property consists in

‘ Rigg 11. Earl of Lonsdnle, 1 H. & the unlawful disturbance by force of another's possession. There

N. 923; Blades 0. Higgs_12 C. B. (N. for~, that is not a trespass which consists merely in some wrong s.) 501; 13 0. B. (N. s.) 844; s. 0. in

Error, 11 H. L. Cas. 621. done to property by one to whom, for any purpose, the posses 9 Justinian, Inst. Lib. 2,t. 1, § 12. sion hall been transferred by the owner, and who at the ti mo of

‘Fish are the property of those holdin~ who take them, and a whale belongs the wrong was lawfu11y it.• But a possession obtained to the captors. Taber 0. Jenny, 1 by fraud and for the very p'nrpose of the wrong, is not a lawful Sprague, 315. pos:;ession, and an injury by force, while it continues, must be

' Furlong 0. Bartlett, 21 Pick. 401;

Bradley 0. Davis, 14 Me. 44. deemed a trespass on the possession of the owner.•

‘ Butler v. Collins, 12 Cal. 457. The possession disturbed by a tre!'pass may be eitl1er, 1, tliat ' Brownell v. Manchester, 1 Pick. of" a general owner of the property; or, 2, that of one having 232; Casher 0. Peterson, 4 N. J. 317;

Browning o. Skillman,24 N. J. 351; a special property therein as mortgagee, bailee, or officer;• or,

Taylor 0. Manderson, 1 Ashm. 130:

Whitney 1:. Ladd, 10 Vt. 165; Sewell 1 Rigg ti. Earl of Lonsdale, 1 H. & • Furlong "· Bnrtlett, 21 Pick. 401; 0. Harrington, 11 Vt. 141. N. 923; Blades "· Higgs. 12 C. B. (N. Bradley"· Davis, 14 Me. 44.

~i _ 8.) 501; 13 C. B. (N. 8.) 844; B. C. in • Butler"· Collins, 12 Cal. 457. Error, 11 H. L. Cas. 621. • Brownell "· ~tanchest~r. 1 Pick. 'JusUnian, Inst. Lib. 2, l 1, § 12. 232; Casher "· Peterson, 4 N. J. 317; ~ Fish are the property of those Browning "· Bk ill man, 2! N. J. 351; who take them, and a whale belongs Tnylor "· Mnnderson, 1 Ashm. 130: to the captors. Taber "· Jenny, 1 Whit1wy 1'. Ladd, 10 Vt.165; Sewell Sprague, 315 . "· Harrington, 11 Vt. 141.

• Original from 19 IZ UNIVERSITY OF ICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google wnones T0 PERSONAL PROPERTY. 437 I WBONGS TO PERSONAL PBOPEBTY. 437 3, that of a mere possessor, by which is meant one who has a

peaceable possession, but who shows in himself no other right.

This mere possession is suﬂicient as against one who disturbs it 8, that of a mere po811e880r, by which is meant one who has a without right in himself, and who, therefore, occupies the posi- peaceable possession, but who shows in himselt' no other right. tion of an iutermeddler in that in which he has no interest. This mere poss088ion is sufficient as against one who disturbs it Thus, though an heir as such is not entitled to the possession of the personalty of his ancestor, yet if he have actual possession, without right in himself, and who, therefore, o<.'Cupies the posi he may sue in respect thereof any intruder.‘ So an agister of tion of an intermeddler in that in which he has no interest. cattle, though having no lien, may maintain trespass against a

stranger for taking them away;’ and so may one who is simply Thus, though an heir as such is not entitled to the possession of intrusted with goods for safe keeping without compensation.’ the personalty of his ancestor, yet if he have actual possession, Says SAVAGE, Ch. J.: “It would be monstrously inconvenient if he may sue in respect thereof any intrnder.1 So an agister of a wrong-doer could come and take things out of the possession

of him who had the possession under the rightful owner.‘ cattle, though having no lien, may maintain trespass a~rainst a

Though a mere servant has not such a special property as will stranger for takibg them away;' and so inay one who is simply enable him to maintain trover, yet a bailee or trustee, or any intrusted with goods for sate keaping without cornpenflation.' other person who is responsible to his principal, may maintain the action, and the lawful possession of the goods is priznafacie Says SAVAGJr, Ch. J.: "It would be monstrously inconvenient if evidence of property.” ‘ But possession may be either actual or a wrong-doer eouJd come and take thinh~ out of the possession constructive. The right to the possession of chattels draws to it,

in contemplation of law, the possession itself, so that one party of him who had the possession under the rightful owner.' may sometimes be entitled to sue on his actual possession, while Though a mere servant has not euch a special property as will another may sue on his constructive possession. Thus, though enable him to maintain trover, yet a bailee or trustee, or any a. bailee or a mortgageor of chattels who is left in possession

thereof may bring trespass against one who disturbs his posses- other person who is responsible to his principal, may maintain sion, still if the mortgagee or bailee is of right entitled to the action, and the lawful possession of ~he goods is prim.a facie demand and take possession at any time, this right draws to it evidence of property."• Bot possession may be either actual or the possession, and the wrong-doer is a trespasser upon him also.‘ S0, if one cut wood on the land of another, he has, as to constructive. The right to thft possession of chattels draws to it, ' Hyde 0. Stone, '7 Wend. 854; in contemplation of law, the possession itself, so that one party

Beecher 0. Crouse, 19 Wend. I206. Bee pos~<'ssion, Webb 0. Fox. 7 T. R. 391; Carter o. may sometimes be entitled to sue on his actual while

Bennett, 4 Fla. 283, cases of trover. another may sue on his constructive possession. Thus, though Trespass will not lie against one a bailee or a mortgageor of chattels who is left in possession whose property, in the hands of a

bailee, has been taken with the latter‘s thereof may bring trespass 8i:,a&inst one who disturbs his posses consent. Marshall o. Davis, 1 Wend. sion, still if the mortgllb-ree or bailee is of right entitled to 109. But trover will lie if the prop- demand and take possession at any time, this right draws to it arty is not restored on demand, or is disposed of. See Terry v. Bamherger, the possession, and the wrong-doer is a trespast'er upon him 44 Conn. 558. ' also.• So, if one cut wood on the land ot' another, he has, as to

' Bass 0. Pierce, 16 Bnrb. 595.

' Faulkner v Brown. 13 Wend. 63; 1 Hyde e. Stone, '1 Wend. 8M ; •Faulkner• Brown, 18 Wend. 68; Cowing o. Snow, 11 Mass. 415. Beecher •· Crouse, 19 Wend. ::oo. Bee C,1wing e. Snow, 11 Ma!IS. 413. ‘ Citing Sutton v. Buck, 2 Taunt. Webb "· Fox, 7 T. R. 891; Carter •· 4 Citing Sutton •· Buck, 2 Taunl 309, per CHAMBER, J usticc. 809, per CRAKBBB, Justice. ‘ Faulkner 0. Brown. 18 Wend. 63, Bennett,

64, citing cases. That a scri-ant can- Trespn88 wlU not lie against one ' Faulkner •· Brown. 18 Wrnd. 63,

not bring trespass on the possession whose property, in the hands of a M, citing c:•ses. That a M.Jrvanl can he holds for his master is held in bailee, baa been taken with the IAtter'a not brin~ t~paaa on the pol>l!1'l'l~im1

Tuthill 2*. Wheeler, 6 Barb. 362. conaenl Marshall e. Davia, 1 W «.>nd. he hold~ fitr his muter Is held in ' White v. Brantley, 37 Ala. 430; Ov. 109. But trover wlll lie it the prop. Tuthill t'. Wheeler, 6 Barb. 869. erhy v. McGee, 15 Ark. 459; Staples v. erry is not restored on demand, or i8 • White"· Brantley, 37 Ala. 430; Ov

Smith, 48 Me 470; Strong 0. Adams, 30 disp'>sed of'. Bee Terry"· Bamberger, erby"· llcGce, 1:; Ark. ~9; Staples "· Vt. 221; White 0. Webb, 15 Conn. 302. "Conn. MS. · Smith, 48 Me. 470; Strong e. Adams, 30 • Bau •· Pierce, 16 Barb. G8G. VL Sil; White•· Webb, lG Conn. 809.

Original from DI IZed b UNIVERSITY OF MICHIGAN Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 438 THE LAW on "roars. all third persons, the possession of the wood cut, and may bring 438 THE LAW 01'' 'J:OUTS. suits as possessor against intermeddlers; but if he has cut with-

out right, the wood belongs to the owner of the land, and is

deemed to be in his possession.‘ So the finder of a chattel has all third persons, the possession of the woorl cut, and may hrin;; rightful possession of \vhat he finds, except as against the owner; suits as possessor against intermeddlers; but if he has cut with but the latter has constructive possession, and if the finder out right, the wood belongs to the owner of the land, an1l is intentionally or carelessly abuses or injures it, he becomes him- 1 self a trespasser, and cannot, in a suit by the owner, justify even deemed to be in his possession. So the finder of a chattel has the original taking.’ rightful possession of what he finds, except as again~t the owner; A trespass may be intentional or unintentional. A more but the latter has constructive possession, and if the tinder aecident—which, as has already been said, is an event happening without fault'—ca.n never be a trespass; and, therefore, if one, intentionally or carelessly abuses or injures it, he becomes him in hurriedly removing goods from a burning building, should self a trespasser, and cannot, in a suit by the owner, justify even injure another without being chargeable with negligence, he

would not be liable for the injury; while, if carelessly or reck- the original taking.• lessly, he were to throw the goods into the street, where many A trespass may be intentional or unintentional. A mere persons were congregated or were passing, he would justly be accident-which, as has already been said, is an event happening held a trespasser upon any one injured. That, however, which is

done purposely, though by mistake, is not to be deemed acci- without fault '-can never be a trespass; and, therefore, if one, dental. Therefore, if one goes upon the land of another to take in hurriedly removing goods from a burning building, sliouhl away his own sheep, and by mistake takes some which do not injnre anotLer without being chargeable with negligence, he belong to him, his mistake cannot excuse the trespass.‘ So, if g would not be liable for the iujury; while, if carelessly or reck ‘Ward 1:. Andrews 2 Chit. 636; lessly, he were to throw the goods into the street, where many

Bulkley v. Dolbeare, 7 Conn. 232.

*Oxley 0. Watts, 1 T. R. 12. A persons were congregated or were pas~ing, he would jn::-:.tly be horse was taken up as an cstray and held a trespasser upon any one injured.. That, however, which is afterward worked. llrid to eonst‘:tute done purposely, though by mistake, is not to be deemed acci the party taking him up a trespasser

1b i/titio. See Clark c. Maloney, 3 dental. Therefore, if one goes upon the land of another to tnke

Harr. 68; Brandon 0. Huntsville away his own sheep, and by mistake takes some which do not Bank, 1 Stew. (Ala.) 320; McLaughlin belong to him, his mistake cannot excuse the trespass.' So, if '0. Waite, 9 Cow. 670. ~ ' Ante, p. 80.

‘ Dexter 1:. Cole. 6 Wis. 319. COLE, 1 Ward ti. Andrews 2 Chit. 630; of property; but that evidence of any

J.: “ We have no doubt but the action Bulkley ti. Dolbeare, 7 Coon. 232. unlawful inll•rfcrcnce with, or exer of trespass would lie in this case. In t Oxley ti. Watts, 1 T. R. 12. A cise of acts of ownership over prop. driving oil‘ the sheep the defendant O\\'Jlt•r, in error, without doubt, unlawfully horse was taken up as an cstray and crty, to the excluision of the

interfered with the property of De.\:-, aftcrwurd workc

of property; but that evidence of any "· Waite, 9 Cow. 670. Reynolds fl, Shuler, I> C'ow. 323; 1 unlawful interference with, or exer- • Ante, p. 80. Chit. Pl. 11 Am. Ed. 170, llnd cases cise of acts of ownership over prop- •Dexter fl. Cole, 6 Wis. 319. COLE, cil('d in the nole:1. Xcithc1· is it nect'll erty, to the exclusion of the owm'I'. J.: "We have no doubt but the aclion aary to prove that the act was done would sustain the action. Gibbs 1:.

Chase. 10 Mass. 125; Miller 0. Baker, of trespass would lie in this case. Io with a wro:igf'ul intent, it heing- sum.

1 Met. 27; Phillips 1:. Hall, 8 Wend. driving off the sheep the clefcllllant cient if it was without a ju,.tilfable

610; Morgan v. Varirk, 8 Wend. 587; in error, without doubt, unlawfully cause or purpose, though It were

Wintringham 0. Lafoy, 7 Cow. 735; interfered with the property of Dex; done ncridentally or by mistake. 2 Reynolds 0. Shuler, 5 (‘ow. 323; 1 ter, and it has been frequent!y de Gl'eenl. Ev. ~ 022; Guille "· Swan, 19 (fhit. Pl. 11 Am. Ed. 170, and cases cided that to maintain tl'

cieut if it was without a justiﬁable

cause or purpose, though it were

done accidentally or by mistake. 2

Greenl. Ev. § 622; Guille v. Swan, 19

Johns. 391. There is nothing incon-

sistent with these authorities in the .. Original from case of Parker 0. Walrod, 13 Wend. b ~_s _ -__.--1»: UNIVERSITYO F ICHIG N - -··~ Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google wnonos T0 PERSONAL PROPERTY. 439 one is sent to take property, and does so in good faith, believing WRONGS TO PERSONAL PROPERTY. 489

it to belong to his employer, this is trespass in him if the belief proves unfounded.’ ~ But an employment of force to which the one is sent to take property, and does so in good faith, beJieving plaintiff assents is no trespass upon his rights unless the assent was in itself illegal, as we have seen it is in some cases of per- it to belong to his employer, this is trespass in him if the belief sonal injury.‘ proves unfounded.' · But an employment of fon..-e to which the

The force that constitutes trespass may be applied either, plaintiff assents is no trespass upon his rights unles~ the assent 1, by the party himself who is responsible for it; or, 2, by some other person for whose conduct, as servant or otherwise, he is was in itself illegal, as we have seen it is in some cai;es of per accountable; or, 3, by his domestic animals. The principle on sonal injury.• which the party is held responsible in the second and third cases

is explained elsewhere. The force that constitutes trespll88 may be applied eitber,

The force may beexpress or implied. Thus false or illegal 1, by the party himself who is responsible for it; or, 2, by some imprisonment is a trespass to the person imprisoned, though it other person for whose condnct, ae servant or otherwise, he is is sometimes effected by threats or by otherwise exciting the person’s fears. So setting a ﬁre which directly communicates with accountable; or, 8, by his domestic animals. The principle on the property of another and destroys it, has been held to be a tres- which the party is held responsible in the second and third cases pass in respect to such property.’ But this seems questionable.

The degree of force is immaterial to the right of action. If is explained elsewhere. one’s horse is hitched where he had a right to hitch him, it is 'a The force may be express or implied. Thus false or illegal trespass if another, without permission, unhitches and removes imprisonment is a trespass to the person imprisoned, though it him to another post, however near; ‘ but one may ustify unhitch-

ing a horse from his own fence or shade tree, and removing him, is sometimes effected by threats or by otherwise exciting the per provided it is to a place of safety.‘ son's foars. So setting a tire which directly couunnnicates with As regards the directness of the injury which will distinguish the property of another and destroys it, has been held to be a tres a case in trespass from one in which the remedy must be sought on the special case, there seems to be no better test than this: That pass in respect to such property.• But this seems questionable. if the unlawful force caused the injury before it was spent, this The degree of force is immaterial to the right of action. If injury must be deemed direct; but if. after the unlawful force one's horse is hitched where he bad a right to hit.ch him, it is ·a was spent, the injury occurred, as a collateral or secondary consequence, it is to be considered indirect. trespass if another, without permission, unhitches aud romovee Thus, where one was injured by the throwing of a lighted him to another post, however near; ' but one may justify unhitch squib into a crowd, which only reached him after several persons,

in self protection, had repelled it from themselves. this was a ing a horse from his own fence or shade tree, and removing him, trespass, because the plaintiff was injured as a direct consequence provided it is to a place of safety.• 296." See a similar casein Hobart 0. general principle, Cadwell 0. Farrell, As regards the directness of the injury which will distinguish Hagget, 12 Me. 67. 28 Ill. 438.

‘ Higginson 0. York, 5 Mass. Ml. ‘Jordan v. Wyatt, 4 Grat. 151. a case in treiopMS from one in which the remedy must be sought on Bee Busely v. Clurkson, 8 Lev. 87. ‘ Burch 0. Carter, 82 N. J. 554. the special case, there seems to be no better test than this: That

' See auto, p. 163. Also, for the ' Gilman 0. Emery, 54 Me. 460. if the unlawful force cam~ed the injury before it was spent, this injnry must be deemed direct; but if. after the unlawful force was spent, the injury occnrred, as a collateral or secondary con eeqnence, it is to be considered indirect. Thus, where one was injured by the throwing of a lighted squib into a crowd, which only reached bim after several peri;ous, in self protection, had repelled it from themseh·cs. this was a trespas1:1, because the plaintiff wae injured as a direct consequence

296." See a 1lmllar cue in Hobart•· general principle, Cadwell e. Farrell, llagget, 19 Me. 67. 28 Ill. 438. 1 Higginson •· York., 5 Hua. ML • JorJan "· Wyatt, .& Grat. llil. See Basely "· Clarkson, 8 Lev. 3'1. •Barch t1. Carter, 82 N. J. 6.>4. • See an&e, p. 163. A.lao, for the •Gilman•· Emery, 54 Mc. '60.

trespass if one injure another in the careless handling of tire- 1 arms.’ S0, “if a man throws a log into the highway, and in of the unlawfnl a.ct; and before it.a force was spent. So it is a that act it hits me, I may maintain trespass, because it is an imme- trespass if oue injure another in the careless handling of fire diate wrong; but if, as it lies there, I tumble over it and receive arms.1 So, "if a man thrO\vs a log into the highway, and in an injury, I must bring an action upon the case, because it is

only prejudicial in consequence, for which originally I could have that act it hits me, I may maintain trespass, because it is an imme no action at all.” ‘ So it is a trespass if one turn a stream upon diate wrong; but if, as it lies there, I tumble over it and receive his neigl1bor’s land by carrying a ditch over the line; but if he an injury, I must bring an action upon the case, because it is only set up a spout on other lands, which may carry water there when it rains, or a dam, which may turn it there, the injury, only prejudicial in consequence, for which originally I c.-onld have when it comes, will arise on the special case.‘ So if one care- no action at all."' So it is a trespass if one turn a stream upon lessly drives against another, this is a trespass; ‘ but if his his neighbor's land by carrying a ditch over the line; but if he servant is guilty of the like want of care, the action should be case.’ So, though one of several stage proprietors, who is him- only set up a spout on other lands, which may carry water there self driving the coach, might be sued in trespass for carelessly when it rains, or a dam, which may turn it there, the injury, driving against the plaintiff and injuring him; yet if other pro- when it comes, will arise on the special case.• So if one care prietors-are sued with him who were not personally connected with the force, the action must be case.’ lessly drives against another, this is a trespass; • but if his A disturbance of an incorporeal hereditament, such, for exam- servant is guilty of the like want of care, the action should be ple, as a right of way, is not a trespass, because the right, being

intangible. is not the subject of force. Neither is a forcible case.• So, though one of several stage proprietors, who is him injury to property, in which the plaintiif has only a reversionary self driving the coach, might be sued in trespass for carelessly ' Scott o. Shepherd, 8 Wils. 403. driving againe.t the plaintiff and injuring him; yet if other pro ' Underwood v. Hewson, Stra. 596;

Weaver Iv. Ward, Hob. 134; Taylor 0. prietors• are sued with him who were not personally connected

Rainbow, 2 H. & N. 423. with the force, the action must be case.' ’ Psnxnn, Ch. J ., in Reynolds v. A disturbance of an incorpureal hereditament, such, for exam

Clarke, Stra. 634, 686.

‘ Reynolds 0. Clarke, Stra. 634. ple, as a right of way, is not a trcspai>s, because the right, being

' Leame v. Bray, 3 East, 593. See, intangible, is not the subject of force. Neither is a forcible to the same effect, Sheldrick v. Abery, injury to property, in which the plaintiff has only a reversiona.ry 1 Esp. 55; Day 0. Edwards, 5 T. R.

648; Savignac v. Roome, 6 T. R. 125.

° Haggett v. Montgomery, 5 Esp. 1 Scott "· Shepherd, S Wils. 403. tlon or injury of animals run over by (2 N. R.) 446. Compare Williams 0. 1 Underwood "·Hewson, Stra. 596; its cars or engines, unless the wrong Holland, 6 C. & P. 23, and Ogle v. Weaver"· Ward, Hob. 134; Taylor"· ful act was done by its direction, or Barnes, S T. R 187, explained in Rainllow, 2 II. & N. 423. with its assent. The conductor, en

L€8.l1lC v. Bray. 3 East, 5915, 595. An 1 P ..\llKER, Ch. J., in Reynolds •· gineer, or other eubordinnte agent action of trespass docs not lie against Clarke, Stra. 634, 636. who has charge of the train at the a railroad company for the destruc- time of the accident ie not, for thie tion or injury of animals run over by • Reynolds "· Clarke, Stra. 634. ti. its cars or engines, unless the wrong- • Leame Bray, 3 E1tst, 593. See, purpose, the represcntath·c of the cor

ful act was done by its direction, or to the same effect, Slteldrick ti. Abery, poration. S1·lma, Rome & Dalton R. with its assent. The conductor, en- 1 Esp. 55; Day "· Edwards, 5 T. R. R. Co. "· Webb, 49 Ala. 240, citing gineer, or other subordinate agent G48; Savignac "· Roome, 6 T. R 125. Phil., Gereetl & N. H. R. Co. o. Wilt, who has charge of the train at the •Haggett v. Montgomery, 5 Esp. 4 Whart 143. time of the accident is not, for this (2 N. R) 446. Compare Williams "· , lloreton "· Hardern, 4 B. & C. 223; purpose, the representative of the cor- Holland, 6 C. & P. 23, and Ogle ti. S. C. 6 D. & Ry. 275. Perhaps, how. poration. Selma, Rome & Dalton R. Burnes, 8 T. R 187, explained in ever, where negligence is the gist of R. Co. v. Webb, 49 Ala. 240, citing Leame v. Bray, 8 East, 59 :), 505. An action, case may at all times be Phil., Gereed 85 N. R. R. Co. 0. Wilt, action of trespass does not lie against llrought, even though the injury may 4 Whart 143. a railroad company for the destruc. be direct. " llloreton v. Hardern,4 B. & C. 223;

S. C. 6 D. & Ry. 275. Perhaps, how-

ever, where negligence is the gist of

action, case may at all times be

brought, even though the injury may

be direct.

Original from UNIVERSITYO FM ICHIGA N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google WRONGS tro PERSONAL PROPERTY. 441 interest, a trespass, since he can have in such property no WRONGS TO PERSONAL PROPERTY. 441

constructive possession.‘

Anything is the subject of trespass in which the law recognizes interest, a trespass, since he can have in such property no any property, complete or partial. Therefore, to kill one’s dog

or cat, or even a wild beast kept in conﬁnement, is a trespass, constructive possession.' unless it can be justiﬁed.’ Anything is the subject of tresp888 in which the law recognizes The remedies for a trespass are either, 1, an action for the any property, complete or partial. Therefore, to kill one's dog recovery of damages, which will lie in all cases. 2, recaption of the goods, when the trespasser has taken them into his posses- or cat, or even a wild beast kept in confinement, is a trespass, sion, and they can be retaken without breach of the peace; and, unle!'s it can be justified.•

3, replevin or recapture of the goods by legal process.‘ A tres-

pass may also generally be treated as a conversion. The remedies for a trespass are either, 1, an action for the

Indirect Injuries. These are generally injuries of negligence, recovery of damages, which will lie in all cases, 2, 1·ecaption of and are committed by a failure to observe that care in respect to the goods, when the trespasser has taken them into his posses the rights of others which is their due. But they may be inju-

ries intended, and differing from trespasses only in this: that sion, and they can be retaken without breach of the peace; and, they are secondary, and not a direct result of the unlawful act. 3, replevin or recapture of the goods by legal process.' A tres Thus, if one shoot a gun into a crowd and injure some one of the pass may also generally be treated as a conversion. persons there congregated, the act is a trespass; but if he pur-

posely, and with evil intent, leave a loaded pistol where children will be likely to handle it, he will be equally liable when an injury Indirect Injuries. These are generally injuries of negligence, occurs, but the action must be on the special case, because the and are committed by a failure to observe that care in respect to injury is indirect, and does not happen until some secondary the rights of others which is their due. But they may be inju agency has intervened.‘

TBOVKR. ries in tended, and differing from trespa.si>es only in this: that The injury which is redressed in an action of trovcr is techni- they are secondary, and not a direct result of the unlawful act. cally called conversion, and the declaration counts upon the real

' Hall v. Pickard, 8 Camp. 187. Thus, if one shoot a gun into a crow

The case was one in which horses had persons there congregated, the act is a trespass; but if he pur been let by the plaintiﬂ‘ for a certain posely, and with evil intent, leave a loaded vistol where children time, and one of them was run against and kllled before the time had expired. will be likely to handle it, he will be eq_ually liable when an injury And see Lunt u. Brown, 13 Me. 236. occurs, but. the action must be on the special case, because the ’ Parker o. Misc, 27 Ala. 480; Dod- injury is indirect, and does not happen until some secondary son v. Mock, 4 Dev. & Bat. 146;

Wheatley 0. Harris, 4 Sneed, 468; agency has intervened.•

Dunlap a. Snyder, 17 Barb. 561; Wolf TROVER. 0. (Jhalker, 31 Conn. 121; Perry o.

Phipps, 10 Ired. 259; Lentz 0. Stroh,

6 S. dz R 84. The injury which is redressed in an action of trover is techni ' A citizen. whose horse was taken cally called conversion, and the declaration counts upon the real and carried otf by the army, and is

ﬁnally found in private hands, may lawfully retake it, and if the party in 1 Hall 11. Pickard, 8 Camp. 187. 1 A citizen. who•c horse WBB taken possession claims it, he is called upon The case was one In which horse11 had and cnrrlecl off by the army, and ia to show how the owner lost his title. been let by tho plaintiff for a certain finally found in private hand11, may Hawkins 0. Nelson. 40 Ala. 558. time, BDd one of them was run against lawfully retake it, and if the party in 4 Dixon r. Bell, 5 M. & 8.198. See and killed before the time had expired. possession claims it, he is called upon Welch 2:. Durand, 36 Conn. 182; S. C. And see L11nt "· Brown, 13 Mc. 236. to show how the owner lost hia title. 4 Am. Rep. 55; Tancred 0. Allgood, •Parker"· Mise, 27 AIL 480; Dod. Hawkins tt. Nel!!On, 40 Ala.. O."i.1. 4 H. & N. 438. - aon e. }lock. • Dev. & Bat. 146; ' Dixon r. Bt>ll, ~ M. & 8. 108. See Wheatley "· Harris, • Snee

defendant found and appropriated them. “ In tbrm the action is a fiction; in substance, a remedy to recover the value of personal or SDJlposed flk}t that the plaintiff casually lost his goods, and the chattels wrongfully converted by another to his own use. The defendant found and appropriated them. "In form the action is form supposes the defendant may have come lawfully by the pos- a fiction; in substance, a remedy to recover the value of personal sion of the goods. This action lies, and has been brought in many cases where, in truth, the defendant has got the possession chatt.cls wrongfully converted by another to his own u sc. The lawfully. lVhere the defendant takes them wrongfully. and by form sopposea the defendant may have come lawfully by the pos trespass, the plaintifl', if he thinks fit to_bring this action, waives sion of the goods. This action lies, aud has been brought in the trespass, and admits the possession to have been lawfully gotten.”‘ If the plaintiff prefers to recover hack the specific many cases where, in truth, the defondant has got the possession property, he brings replevin instead of trover, provided the goods lawfully. 'Vhere the defendant takes them \vrongfnJly. and by are still in the defendant’s possession, and he might formerly activn~ have brought the now nearly obsolete action of detinue.' trespass, tho plaintiff, if he thinks fit to. bring this w&i ms

There are two principal differences between the actions of tres- the trc~pass, and admits the possession to have been lawfo.lly pass and trover for personalty appropriated by defendant; the gotten."' It' the plaintiff prefer~ to recover back the specific

ﬁrst of which is, that in trespass there is always either an original

wrongful taking, or a taking made wrongful ab initio by subse- property, he brings replevin instead of trover, provided the goods quent mise0nduct,' while in trover, the original taking is Sll1)I)U.\CLl are still in the defendant's possession, and he might formerly or assumed to be lawful, and often the only wrong consists in a have brought the now nearly obsolete action of detinue... refusal to surrender a possession which was originally rightful,

but the right to which has terminated. The second is, that There are two principal differences between the actions of tres trespass lies for any wrongful force, but the wrongful ‘force is no pass and trover for personalty appropriated by defondant; the conversion where it is employed in recognition of the owner's firi;t of which is, that in trei;pass there is always either an original right, and with no purpose to deprive him of his right, temporarily

or permanently. Thus, if one take up the beast of another, in wrongful taking, or a taking made wrongful ah initio by su bse order to prevent his straying away, and afterwards turn him out quent misconduct,' while in trover, the original taking is suppo~cll again, he may be liable in trespass for so doing, but his act is no or assumed to be lawful, and oft.cu the only wrong eonsists in a conversion, because the owner’s dominion is not disputed, and

the intent to make a wrongful appropriation is absent.‘ refusal to surrender a possession which was originally rightful,

Who may bring Trover. It is commonly said that “ to sustain but the rigl1t to which has terruini~tcd. The secoml is, that trover, the plaintiff must show a legal title; he must have prop- trespass lies for any wrongful force, but the wrongful ·force is no ‘ Lord Mmvsrtann, Ch. J ., in

Cooper 0. Chitty, Burr. 3. See the conversion where it is employed in rc<.·ognition of the owner's nature of the action explained in Bur- right, and with no purpose to deprive him of his right, temporarily roughes v. Bayne, 5 H. & N. 296, 309. or permanently. Thus, if oue take up the beast of another, in ' There are statutes in some States which permit the plaintiff in an ac- order to prevent his st1·aying away, and aflerwards turn him out tion of replevin to proceed in it as in again, he may be liable in trespass for so doing, hut his act is no trover, and recover the value of the conversion, because the owner's dominion is not disputed, and 7 — 7 -"' -— '- — m w property in case the otﬁcer fails to the intent to make a wrongful appropriation is absent.•

ﬁnd it to return to him on the writ.

‘ Van Brunt v. Schcnck, ll Johns, Who may bring Trover. It is commonly said that " to f\Ustain 377; Parker o. Walrod, 13 Wend. 296; trover, the plaintiff must show a legal title; he must have p1·op- S. C. in error, 16 Wend. 514.

‘ Wilson 0. McLaughlin, 107 Muss.

587. I Lord lfAN81'1ELD, Ch. J., ID property in case the officer fails to Cooper e. Chitty, Burr. 8. See the find It to return to him on the writ. nature of the action explained in Bur 1 Van Ilrunt "· Schenck, 11 Johns, roughea 11. Bayne, IS H. & N. 296, 809. 877; Purkcr e. Walrod, 13 Went!.~; .. There are statute& iD some States 8. C. in error, 16 Wend. 614. which permit the plaintiff in an ac. ' Wilsou e• .McLaughlin. 107 .Hus. Uon of replevin to proceed in it as in IS87. trover, and feCOVer the value of the

Original from UNIVERSITYO FM ICHIGA N -· ------=u-_-.i Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google wnones T0 PERSONAL Pnoranry. 443 erty, general or special, or actual possession or the right to i|mne- WRONGS TO PERSONAL PUOPE~TY. 443

diate possession at the time of the conversion; ”' and in some cases the defendant has been allowed to defeat a recovery by erty, general or special, or actual possession or the right to imme merely showing property in a third person, without at all con- 1 necting himself with the right of such person. Thus, in Rotan diate possession at the time ot' the conversion;" aud in some v. Fletcher, the suit was trover for a cow taken from the posses- cases the defendant has been allowed to defeat a ret'O\·ery by sion of the plaintiff, and which he had bought of the wife of one mere1y showing property in a third person, without at all con Hcininway, the owner, who had absconded. There was some evidence of an attachment of the cow for a debt of Heminway, necting himself with the right of such person. Tims, in R"tan but the court, without relying upon this, held the action not v. .Fletcher, the suit was tro•;er for a cow taken from the posses maintainable. “The action was trover, and it was competent for

the defendant to prove property in a third person. The pre- sion of the plaintiff, and which he had bought of the wife of one tended sale from Mrs. Ileminway did not transfer the property Hcminway, the owner, who had absconded. There was some to the plaintiff below. She had no authority to sell the cow; e\"idence of an attachment of the cow for a debt of Heminway, and besides, it was offered to be proved that even this sale was fraudulent.” ' S0 in T at/till v. Wheeler, it was decided that one but the court, without relying upon this, held the action not in possession of a canal boat for the season, under a contract with maintainable. "The action was trover, and it was competent for the owner to navigate it, and to be accountable for any injury to the defondant to prove property in a third person. The pre it, could not bring trover against one who had taken it from his possession, because he had at the time in the boat neither a tended sale from Mrs. Ileminway did not transfor the property special nor a general ownership.‘ The reason is thus given by to the plaintiff below. She had no authority to sell the cow; the Supreme Court of Maine: “The defendant in an action of to trover, may prove that the title to the property claimed was, when and besides, it was offered be proved that ereu this sale was the suit was commenced, in a third person, and thus defeat the fraudulent."• So in Tuthill v. Wheeler, it was decided that oue action. If he could not, he might subsequently be compelled to in possession of a canal boat for the season, under a contract with pay for the same property again to such third person, he being a

stranger to the ﬁrst suit.” ‘ But as the liability is also incurred the owner to navigate it, and to be accountable for any injury to where trespass is brought on a mere possession, it is manifest it, could not bring trover against one who had taken it from his that it cannot constitute any sufficient reason for holding that a possession, because he had at the time in the boat neither a party may sue in one form of action but not in the other.

' Drury o. Mutual, etc., Ins. Co., 88 special nor a general ownership.' The reason is thus gi,·en by Md. 242, 249, per Minnsn, J.; Ste- the Supreme Conrt of Maine: "The defendant in an action of phenson o. Little, 10 Mich. 433, 439,

per lllasnmo, J.; Owens v. Weed- trover, may prove that the title to the property claimed was, when man, 82 Ill.409, 417, per DICKEY, J. the snit was commenced, in a third person, and thus defeat the Of course the husband cannot bring action. If he could not, he might snLSt!qnently be compelled to trover for the conversion of the wife's

property. Taylor 0. Jones, 62 Ala. pay for the same property again to such third person, he being a

78. stranger to the first suit."' But as the liability is also incurred ’ Rotan '0. Fletcher, 15 Johns. 206. where trespass is brought on a mere pos=-ession, it is mtmifost See Sheldon 0. Super, 14 Johns. 852;

Grady v. Newby, 6 Blackf.442; Glenn that it cannot <.'Onstitute any sufficient reason for holding that a 0. Garrison. 17 N. J. 1, 4. party may sne in one form of action but not in the other.

‘Tuthill 0. Wheeler. 6 Barb. 862.

‘ (llnpp 0. Glidden, 39 Me. 448. 451.

It has been held in the same Slate, 1 Drury"· M11tua1, etc., Ins. Co., 88 Grady"· Newby, 6 Blackf. 442; Glenn however, that the existence of a lien Md. 242, 249, per 1'hLLER, J.; Ste e. Gurrison, 17 :N". J. 1, 4. on goods in favor of a common ear. phenson "· Little, 10 Mich. 438, 439, • Tuthill "· Wiledcr. 6 Barb. 862. rier was no defense to a wrong. per MANNING, J.; Owens ti. Weed. • Clupp "· Glidden, 39 Me. 448, 431. doer sued by the owner for a conver- man, 82 111. 409, 417, per DrcKKY, J. H bas been held in the same State, sion of the goods. Amcs 0. Palmer, or cour.;e the h11sb11nd cannot bring however, that the cxilitcnce of 11 lien 42 Me. 197. t.rover for the conversion of the wlfc's on gQOds in favor of a common c11r property. Taylor ti. Jones, li2 Ala. rier Wl\S no defense to a wrong. 78. doer sued by I.he owner for a conver 1 Rotan "· Fletcher, 13 Johns. 206. sion of the goods. Ames ti. Palmer, See Sheldon •·Soper, 14 Johna. 852; 42 Me. 19'1.

Original from D liz by UNIVERSITY OF ICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 444 THE LAW or TORTS.

In the foregoing cases the general doctrine is so stated as to 444 THE LAW OF TORTS.

render it misleading. It has often been decided that possession alone is suﬁicient to enable one to maintain the action of trover, In the foregoing cases the general doctrine is so stated as t.o and in a leading case, always since recognized as authority, the render it misleuding. It has oft.en been decided that possession

ﬁnder of a jewel was held entitled to bring trover against one

who, having taken the jewel for examination, refused to restore alone is sufficient to enable one to maintain the action of trover, it.‘ It may, indeed, be said of this case that here was something and in a leading case, always since recognized as authority, the more than a bare possession, for a ﬁnder of goods has a special finder of a jewel was held entitled to bring trover against one property therein which is good against all the world but the real

owner; but other cases go further, and hold, in the language of who, having taken the jewel for examination, refused to restore

Lord CAMPBELL, that “the law is, that a person possessed of it.' It may, indeed, be said of this case that here was something goods as his property has a good title as against every stranger, more than a bare possession, for a finder of goods has a special and that one who takes them from him, having no title in himself, is a wrong-doer, and cannot defend himself by showing that property therein which is good against all the world but the real there was a title in some third person, for against a wrong-doer owner; but other cases go further, and hold, in the language of possession is title. The law is so stated by the very learned Lord C..&MPBEr.L, that "the law is, that a person posst.>ssed of annotator in note to Wilbra/tam v. Snow,‘ and I think it most reasonable law, and essential for the interests of society, that goods as his property has a good title as against e\·ery stranger, peaeeable possession should not be disturbed by wrong-doers. and that one who takes them from him, having no title in him * * * It is not disputed that thejue tertii cannot be set up self, is a wrong-doer, and cannot defend himself by showing that as a defense to an action of trespass for disturbing the possession. In this respect I see no difference between trespass and there was a title in some third person, for against a wrong-doer trover; for, in truth, the presumption of law is that the person possession is title. The law is so stated by the very learned who has the possession has the property. Can that presumption annotator in note to lVilbraliam v. Snow,' and I think it most be rebutted by evidence that the property was in a third person, when offered as a defense by one who admits that he himself reasonable law, and essential for the interests of society, tl1at had no title and was a. wrong-doer when he converted the goods? pea<..-eable possession should not be disturbed by wrong-doers.

I IEID of opinion that this cannot be done.” '

So, in New York, it has been held that trover will lie “on a * * * It is not disputed that the jm tertii cannot be set up bare possession” against a stranger,‘ and that a defendant in as a defense to an action Of trespass for disturbing the posses trover cannot set up property in a third person without showing sion. In this respect I see no difference between trespass and some claim, title or interest in himself derived from such person.‘

‘Armory 0. Delamirie, Btra. 505; troV'er; for, in truth, the presumption of law is that the person

McLaughlin 0. Waite, 9 Cow. 670; who has the possession has the property. Can that presumption Brandon 0. Planters, etc., Bank, 1 be rehntted by e\'idence that the property was in a third person,

Stew. 320; Clark 1:. Maloney, 8 Hart.

68. See 1\IcAvoy 0. Medina, 11 Allen, when offered as a. defonse by one who admits that he himself

548. had no title and Wl\8 a wrong-doer when he converted the goods 1 ' 2 Wms. Saunders, 47 f. I 'am of opinion that this cannot be done."• ' Jeffcries 0. Great Western R. Co.,

5 El. & Bl. 802. The defendant having So, in New York, it has been held that trover will lie "on i.. failed to make out any right in him- bare possession" against a stranger,• and that a defondant in self songht to show that by an act of trover cannot i;;et up property in a third person without showing bankruptcy the title had passed to assignees. Held, inadmissible. some claim, title or int.erest in himself derived from such person.•

‘ Daniels 1:. Ball, 11 Wend. 57, note.

' Duncan v. Spear, 11 Wend. 54, s Armory e. Delamirie, Stra. 505; failed to make out any right in him approved in Harkcr o. Dement, 9 Gill, McLaughlin e. Waite, 9 Cow. 670; self sought t-0 show that by an act of 9, 12. Brandon "· Planters, etc., Bank, 1 bankruptcy the title hnd passed to Stew. 320; Clark "· Maloney, 8 Harr. assignees. Ht'ld, inadmissible. 68. Bee McAvoy "·Medina, 11 Allen, 'Daniels 11. Ball, 11 Wend. 57, note. 648. 1 Dunc1m o. Spear, 11 Wend. 54, 1 2 Wms. Saunders, 47 f. approved in llarkcr "· Dement, 9 Gill, • J etferles "· Great W estcm R Co., 9, 12. IS El. & Bl. 802. The defendant having

• Original from UNIVERSITYO FM ICHIGA N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google waorres T0 PERSONAL PROPERTY. 445

In Vermont the same doctrine is asserted, though it is conceded 'WRONGS TO PERSONAL PROPERTY. 445

that if one have a bare possession only, which he voluntarily surrenders to another, he cannot afterward rely upon it as In Vermont the same doctri~e is asserted, though it is conceded evidence of ownership.‘ In New Hampshire it is said, in one ease, “ The plaintiff had possession, and that is suﬁicieut in trover that if one have a b~ possession only, which he voluntarily against a wrong-doer. It is enough until the defendant shows surrenders to another, be cannot afterward rely npon it as a. better title.”’ Other cases are to the same eﬁ'eet.' evidence ot' ownership! In Ne\v Hampshire it is said, in one lVhcn, therefore, it is said that the plaintiff in trover must have had, at the time of the conversion, the right to the prop- case, "The plaintiff had possession, and that is snfficient in tro,·er erty, and also a right of possession, nothing more can be intended against a wrong-doer. It is enough until the detendant shows than this: that the right of which he complains he has been

deprived must have been either a right actually in possession, or a better title.'" Other cases are to the same effect.• a right immediately to take possession; it is not enough that it When, therefore, it is said that tbe plaintiff in trover must be merely a right in action or a right to take possession at some have had, at the time of the convcrsiou, the right to the prop future day.‘ If then the plaintiﬁ’ shows that property in his possession has been taken and converted, he shows prizna frwie erty, and also a right of posse:;-.ion, nothing more can be intended his right to maintain the suit; and it is only when he is com- thau this: that the right of which he complains he has been pelled to show his title, in order to make out his right to imme- deprived must have been either a right actually in possession, or diate possession, that it can be important for him to go further.-‘

In illustration of cases in which a showing of title is not a right immediately to take possession; it is not enough that it suﬁicient, those may be instaneed in which the owner has parted be merely a right in action or a right to take possession at some with the right of possession for a time under some contract of

lease or bailment. In such a case, if the term has not expired future day.• If then the plaintiff shows that property in his or the bailment been terminated at the time conversion takes possession has been taken and converted, he shows pr>."ma fru:u place, the owner cannot sue in trover,' because not having had his right to maintain the snit; and it is only when he is com the right to possession his only injury is in his reversionary interest, and in suing for that he must count on the special case pelled to show his title, in order to make out hie right to imme and not on a conversion.’ So, if one purchases property to be diate possession, that it can be important for him to go further.~ paid for on delivery, and pays in part only, he cannot bring In illustration of cases in which a sl1owing ot title is not ' Knapp 0. Winchester, 11 Vt. 351.

‘Bartlett 0. Hoyt, 29 N. H. 317, sufficient, those may be instanced in which the owner hns parted ‘Gordon v. Harper, '7 T. R. 9; with the ril{ht of possession for a time under some <.-ontract of

“'heelcr u. Train, 3 Pick. 255, 253;

citing Sutton 1:. Buck, 2 Taunt. 302. lease or bailment. In such a case, if the term has not expired

' Carter 0. Bennett, 4 Fla. 283, 355; or the bailment been terminated at the time convcr,,;ion takes Burke 0. Savage, 18 Allen, 408; Hub- place, the owner cannot sue in trover,' oocanse not having had bard o. Lyman, 8 Allen, 520; Magrec 0.

Scott, 9 Cush. 148; Cook v. Patterson, the right to possession his only injury is in his reversionary 35 Ala. 102; Vining v. Baker, 53 Me. infierest, and in suing for that he must count on the special cal'e 544; Coﬂln v. Anderson, 4 Blackf. 395. and not on a conversion.' So, if one purd1ases property to be ‘ See Wilson v. Wilson, 37 Md. 1;

Dudley v. Abner, 52 Ala. 572. paid for on delivery, and pays in part only, he cannot bring

‘ See Foster v. Chamberlain, 41 Ala.

158, and cases cited. 1 Knappe. 'Winchester, 11 Vt. 351. 1 Gordon ti. Harper, 7 T. R. 9; Fuirbnnk r. Phelps, 22 Pick. 535; t B.1rtlett e. Hoyt, 29 N. H. 817, Wheeler e. TrRln, 3 Pick. 2.1:;, 2:;s; Caldwell v. (‘ow:m, 9 Yerg. 262; Clark citing Sutton ti. Buck, 9 Taunt. 302. F11irb1mk ~. Phcl)l11, 22 Pick. 5~;

0. Draper, 19 N. H. 419; Forth r. • tJarter •· Bennett, 4 Fla. 2.'-13, 3:>5; Cal

Parsley, 82 ll]. I52; Winship o. Burke e. Savage, 18 Allen, 408; Hub. ti. Draper, 1D N. H. .4,19; Forth t'. Neale, 10 Gray, 382. bard e. Lyman, 8 Allen, 520; MRfZ'l'C "· Pursley, 82 Ill. e. " McGowan v. Chapen, 2 Mnrph. 61; 1S2: 'Winship

Hillard 0. Dorich, 3 Hawks, 246; Scott. 9 CUlh. 148; Cooke. Patterson, Neale, 10 Gray, 882. 1 Ayer 0. Bartlett, 9 Pick. 150; Mm"- 85 Ala. 102; Vining"· Baker, GS )[e. !\lcGowan "·Chapen, 2 :Murph. 81; shall v. Davis, 1Wcnd. 109; Arthur v. Mot; Coflln 11. Anderson, 4 Blackf. 003. Billard "· Dortch, 8 Hawks, 246;

Gayle, 88 Ala 259. ' See Wilson ti. Wilson, 87 Md. 1; Ayer "· Banlett, 9 Pick. t:m; Mar. Dudley t1. Abner, 52 Ala. 5i2. shall ti. Dat"is, 1 Wcnd.109; Arthur"· ' See Foster t1. Chamberlain, 41 Ala. Gayle.. 38 A.la 25g. lli8, and casea cited.

that aims a possession has been gaine>/ and one who disturbs trover against a subsequent vendee from his vendor, since his trover &gl'inst a subsequent vendee from his vendor, since his part payment did not invest him with the right of possession.‘ part payment did not invest him with the right of possession.'

In a certain sense, however, one always shows a right of prop-

erty when he shows that he has gained an apparently rightful In a certain sense, however, one always shows a right of prop possession. Such a possession is evidence of property, and who- erty when he ehows that he has gained an apparently rightful ever, by force or fraud, intercepts it without being able to show possession. Such a possession is evidence of property, and who any right in himself, is liable to this action. Indeed, the possession gained is not only evidence of right as against such a. ever, by force or fraud, intercepts it without being able to show person, but it is conclusive evidence, unless he is able in some any right in himself, is liable to this action. Indeed, the pos manner to so connect himself with the right of the real owner session gained is not only evidence of right as aaainst such a as to be entitled to defend in such owner’s interest. Thus, if one has a bare possession, and this is taken from him by one having person, bnt it is conclnsive evidence, unless he is able in some no right, the latter may defend against an action of trover by manner to so connect himself' with the right of the real owner showing that he had been notiﬁed by the owner to retain the

property for him.’ And where the plaintiﬁ"s possession was not as t.o be entitled t.o defend in such owner's interest. Thus, if one rightful as against the owner, a surrender of the possession to has a bare possession, and this is taken from him by one having the owner would be a complete defense to a suit in trover.‘ no right, the latter may defend against an action of tro\·er by There must also be many cases in which a mere showing of the

wrongful character of the plaintil’f’s possession would defeat his showing that he had been notified by the owner to retain the action, as where a thief sues the oﬁicer for the stolen property property for him.• And where the plaintiff's possession was not

taken from him in making the arrest, or a trespasser brings suit rightful a.s against the owner, a surrender of the po~ssion to against one who stops him while carrying oﬂ' the goods he has wrongfully taliep;rTl‘l'e§e are cases in which it cannot be sai the owner would be a complete dcfonse t.o a snit in trover.• this wrongful iﬁual possession may defend in the right of the There most also be many eases in which a mere showing of the

. \-L

owner, whether expressly authorized to do so or not.‘ r ° wrongful character of the plaintiff's po8sc•ssion would defeat his

On the principle that where one has the right of property this action, as where a thief snes the ofifoor for the stolen property

draws to it the right of possession, if one's goods are held with- taken from him in making the arrest, or a trespMser brin~s snit out right by another, and a third person converts them to his own use, the owner may maintain trover for such conversion.‘ against one who stops him while carrying off the goods he has ’ Owens 0. Woodman, 82 Ill. 409, wrongfully taken. r'fltetie are cases in which it cannot be sai citing Bloxam e. Sanders, 4 B. & C. ---that-fu.Taw hf\8 been gain · and one who distm·bs of letters the administrator had noti- ? ~ession ﬁed him not to deliver them to the . this wron o manual possession may defend in the right of the ~ 941; Wilmshurst v. Bowker, 5 Bing. owner, whether expre@sly authorized to do so or not.' r- -o

(N. 0.) 541.

* A warehouseman, being bailee of On the principle that where one has the right of property this the goods from the plaintiff, may draws to it the right of possession, if one's goods are held with show in defense to an action of trover out right by another, and a third person converts them t.o his that the goods are a part of the esfate

of a deceased person and were bailed own use, the owner may maintain trover for such conversion!

to him before administration granted

thereon, but that since the taking out 1 lettt>ra the administrator had noti —* — Y -- - -_ <-I;-g Owens e. Weedman, 82 Ill. 409, or

plaintitf. Thorne e. Tilbury, 8 H. & citing Bloxam fl. Sauders, 4 B. & C. fied him not to delive.r them to the

N. 534. 941; Wilmshurst "· Bowker, Ii Bing. plaintiff. Thorne •· Tilbury, 3 H. &

‘ Ogle 0. Atkinson, 5 Taunt. 759; (N. C.) 541. N. 584.

King '0. Richards, 6 Whart. 418. t A warehouseman, being bailee of • Ogle e. Atkinson, 15 Taunl 759; ‘Sec Lacloueh o. Towle, 3 Esp. the goods from the plaintiff, may King "· Richards, 6 Whart. 418. 114; Cheesman ~v. Exall, 6 Exch. 341. show in defense to an action of trover 4 Sec Laclouch e. Towle, 3 Esp. ‘Clark 0. Rideout, 39 N. H. 233; that the goods are a part of the es!ale 114; Cheesman "· Exall, 6 Exr.h. 3-11. Eggleston 0. Mundy, 4 Mich. 295; of a deceased person and were bailed •Clark "· Rideout, 89 N. H. 233; Carter o. Kingman, 103 Mass. 518. to him before admioititration granted E~gleston "· Mundy, 4 Mich. 290; thereon, but that 1ince the taking out CIU't.el' •· Kingman, 100 Masa. 518.

• Original from D UNIVERSITY OF ICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google WRONGS T0 PERSONAL PROPERTY. 447

So the vendor in a void sale to a married woman may bring trover WRONGS TO PERSONAL PROPERTY. 44 7

against a sheriff who levies on the goods as the property of the Woman’s husband.‘ So a mortgagee of chattels who, under So the vendor in a void sale to a married woman may brmg trover his mortgage, is entitled to immediate possession, may sue in

trover for a conversion while they remained in the hands of the against a sheriff who levies on the goods as the property of mortgageor; ' but a servant cannot bring trover for the conver- the woman's hnsband.1 So a mortgagee of chattels who, under sion of his master’s goods, since his possession is the p08S(}.~Sl0[l his mortgage, is entitled to immediate possession, may sne in of his master.‘ A factor, on the other hand, or a bailcc, or any other person with a right of his own, however special or trivial, trover for a conversion while they remained in the hands of the has a property sufﬁcient for the purposes of this action, and as mortgageor; • but a servant cannot bring trover for the con\'er

against a more wrong-doer may recover the whole value of the sion of his master's goods, since his possession is the possct-~ion property, being accountable over to the general owner.‘

What may be Converted. Anything which is the subject oi of his master.' A factor, on the other hand, or a l>ailcc, or 11ny property. and is of a personal nature, is the subject of conver- other person with a right of his own, however special or tri\·ial, sion, even though it have no value except to the owner. The

maker of a note who has paid it, may maintain trover against has a property sufficient for the purposes of this action, and as the payee, who, instead of surrendering it, wrongfully disposes against a mere wrong-doer may recover the whole value of the of it, whereby the maker is compelled to make payment a see- property, being accountable over to the general owner! ond time.‘ Even a refusal to surrender a paid note to the payee

‘Smith 0. Plomer, 15 East, 607.

The distinction between these cases What may be Converted. Anything which is the snhject ot and those in which it has been held property, and is of a personal nature, is the subject of c11m·cr that a lessor cannot bring suit in efon, even though it have no valne ex<'ept to the owner. The trover for the conversion of thc goods leased, is that in these the conversion maker of a not.e who has paid it, may maintain trover agairn'\t took away the plaintiff ‘s present the payee, who, instead of surrendering it, wrongfully disposes right, but in the case of goods leased to it is the termor, not the lessor, whose of it, whereby the maker is compelled mnke payment a t-:ee present right is takcu. and who, con- ond time.• Even a refusal to surrender a paid note to the payee

sequently, is wronged by the conver-

sion. The terinor may bring suit in 1 trover and recover the whole vnluc Smith e. Plomer, 15 Enst, 607. Jones"· Wehster, 48 Ala.109; Bnmgh. of the property, being himself liable The distinction between these cases ton tl. Atchison, 52 Ala. 62; Grm·e tl. over to the lessor when his term is and those in which it has bt!ell held Wise, 38 :Hieb. -. Where the mort ended. Gordon 0. Harper, 7 T. R. 9. that a le!lsor cannot bring suit in gn,!!;eC is not entitled to poss<·ssion the 'McConeghy v. McCaw, 31 Ala. trover for the conversion uf the goods mortl!ngeor mny sue in case for the 447; Robinson 0. Krusc, 29 Ark. 5'75; leased, is that in these the conversion injury to bis rcvcr!lionary in!<•r(•,;t. Colcs 0. Clark, 8 Cush. 399; Cham- took away the plaintiff's present Gno.!.\'ins "· Gilmore. 47 :\le. 9; Forbl'S berl.iin v. Clemence, 8 Gray, 389; Bel- right, but in the case of goods leased e. Parker, 16 Pick. 4fl2; Manning "· lune e. Wallace, 2 Rich. 80; Spriggs it is the termor, not the lessor, whose Monaghan, 23 N. Y. 5:J9. 1:. Camp, 2 Speers, 181; Badger v. 1 tl. Batavia Manuf. Co., 70 Ill. 802; present right is taken. and who, con. Lelli~h Co. Field, 8 W. & 8.

Melody 0. Chandler, 12 Me. 282; sequently, is wronged by lhe conver 232; Fllrmers' Bank. "· Mc Kee, 2

Jones 0. Webster. 48 Ala. 109; Brough. sion. The t.ermor may bring suit in Penn. St. 318. ton 0. Atchison, 52 Ala. 62; Grove v. trover and rcco,·er the whole value 4 Beyer "· Bush, 50 Ala. 19. Ca.<1c Wise, 38 Mich. —-. Where the mort- of the property, bein~ himsclr liable is the proper form of action to be gagec is not entitled to possession the over to the lessor when bis term ls brought against one who t11kl's pos.

mortgagcor may sue in case for the ended. Gordon il. Harper, 7 T. R. 9. session of a crop grown by a tl'nnnt injury to his rcversionary interest. • McConeghy c. McCaw, 81 AIL on which the landlord hns a statutory

Googins 0. Gilmore. 47 )1e.9; Forbes 447; Robinson e. Kruse, 29 Ark. 575; lien. Hussey 11. Peebles. 53 AIR. 432. 0. Parker, 16 Pick. -N52; Manning u.

Monaghan, 23 N. Y. 539. Coles "· Clark, 8 Cush. 399; Cham • Buck "· Kent, 8 Vt. 99; Pierce e.

‘Lt-high Co. o. Field, 8 W. & S. berl.lin "· Clemence, 8 Gray, 38D; Bel. Gilson, 9 Vt. 216; Murray 11. Burling,

232; Farmers’ Bank 0. McKee, 2 lune t:. Wallace, 2 Rich. 80; Spri,rgs 10 Johns. li2; Otisfield r. llayhcrry,

Penn. St. 318. c. Camp, 2 Speers, 181; :U;11l;;t•r "· G3 lie. }!)7. Compare Pllltt 11. Potts,

‘ Beyer 0. Bush, 50 Ala. 19. Case Batavia Manuf. Co, 70 Ill. 802; 11 Ired. ~00; Hesherer fl. Swish' r, 3 is the proper form of action to be lle!Olly e. Chandler, 12 Me. 282; N. J. 748.

brought against one who takes pos-

session of a crop grown by a tenant

on which the landlord has a statutory

lieu. I-Iussey v. Pecbles. 53 Ala. 432.

‘ Buck 1:. Kent, 3 Vt. 99; Pierce 0.

Gilson, 9 Vt. 216; Murray n. Burling,

10 Johns. 172; Otistlcld r. Muyherry, Original from 63 Me. 197. Compare Platt e. Potts, 19 IZ 11 Ired. 266; Besherer 0. Swislnr, 3 UNIVERSITY OF ICHIG N

N. J . 748. Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 448 THE LAW or Tours.

is a conversion, he being entitled to its possession as evidence of 448 TIIE LAW OF 'l'OllTS.

payment; but the damages in such case would only be nominal.‘

So trover will lie by the maker of a note which has never been is a conversion, he being entitled to its possession as evidence of delivered, against the payee, who wrongfully obtains possession, payment; but the damages in such case would only be nominal! and refuses to give it up on demand.’ But it will not lie against a magistrate for papers used in evidence by the plaintiff, before So trover will He by the maker of a note which has never been him, and placed on ﬁle.‘ delivered, ~0'8.inst the payee, who wrongfnlly obtains possession, One may bring trover for a building or other ﬁxture owned by and refuses give it on dcmnnd.' But it will not lie against him on the land of another, which the owner of the land refuses to np to permit him to take away, and converts to his own use.‘ a magistrate for papers usctl in evidence by the plaintiff, before What Constitutes Conversion. Any distinct act of dominion him, and placed on file.• wrongfully exerted over one’s property in denial of his right. or

inconsistent with it, is a conversion. “ The action of trover One may bring trover for a building or other fixture owned by being founded on a conjoint right of property and possession, him on the land of another, which the owner of the land refuse:; any act of the defendant which negatives or is inconsistent with to permit him to take away, and converts to his own use.• such right amounts, in law, to a conversion. It is not necessary

to a conversion that there should be a manual taking of the thing

in question by the defendant; it is not necessary that it should What Constitutes Conversion. Any distinct act of dominion be shown that he has applied it to his own use. Does he exer- wrongfully exerted o\·er one's property in denial of his right. or cise a dominion over it in exclusion or in deﬁance of the plain- inconsist.ent with it, is a conYersion. "The action of trover tiﬁ"s right? If he does, that is in law a conversion, be it tor his own or another person’s use.” ‘ \Vhile. therefore, it is a conversion being founded on a conjoint right of property and possession, where one takes the plaintitl"s property and sells or otherwise any act of the defendant which neg-atives or is inconsistent with disposes of it,‘ it is equally a conversion if he takes it for a. tem-

porary purpose only, if in disregard of the plaintiff ’s right. such right a.mounts, in law, to a conversion. It is not neces~ary

1 Pierce 0. Gilson, 9 Vt. 216; Spen- to a com·ersion that there should be a manual taking of the thing cer v. Denrth, 43 Vt. 98; Stone o. in question by the

stances. Todd v.Crookslnmks, 8 Johns. tiff's right! It' he does~ that is in law a con\•ersion, be it for his 432; Lowremore 1:. Berry, 19 Ala. 130.

’ Groggerlcy v. Cuthbert. 5 B. 8: P. own or another person's use."• \Vhile. therefore, it is a com·ersion 1'70; Evens 0. K_vmer, 1 B. & Ad. 528; where one takes the plni11tiff's property and sells or otherwise

Neal v. Hanson, 60 Me. 84.

‘ Greene 0. Mead, 18 N. H. 505. Tro- disposes of it,' it is equally a conversion if he takes it for a tem ver for parish records has been sus- porary purpose only, if in disregard of the plaintiff's right.

tained. Baker v. Fales, 16 Mass. 487;

Stebbins 0. Jennings, 10 Pick. 172; 1 Pierce "· Gilson, 9 Vt. 216; Spen "·Brown, 12 J\lc.162; Smith"· Henson, Sawyer 0. Baldwin, 11 Pick. 492. 1 Hill, li6; Dame" Dame, 38 N. H. ‘ Osgood v. Howard, 6 Me. 452; Rus- cer "· Dearth, 43 Vt. 98; Stone "· 1'. sell 1:. Richards, 11 Me. 371; Hilborn Clough,41 N. H. 200. In New York 429; Crippin Morriimn, 13 Mich. 23.

~- - — '~— “—'<" and Alabama it has been held that Compare O\"cl'ton "· Williston, 81 o. Brown, 12 Me. 162; Smith v. Benson, trover will not lie under such circum Penn. 155; Prescott v.Wclls, 3 Nev. 89.

1 Hill, 176; Dame v Dame, 38 N. H. i:;tnnces. Todd 1'.Crookshunke, SJohns. 1 WAnNEn.J., in Liptrot fl. Holmes, 429; Crippin 1:. Morrison, 13 Mich. 23. 432; Lowremore 11. Berry, HJ Alu.. 130. 1 Kelly, :.:01, 3!H. 8cc Hiire "·Pear. Compare Overton v. Williston, 81 9 Groggerlcy "· Cuthbert, 5 B. & P. son, 4 Irc11. 76; Gilmnn "·Hill, 36 N. Penn. 155 ; Prescott o.Wells, 3 Nev. 82. 170; Evens"· Kymer, 1 B. & Ad. 528; II. 311; Boyce "· Brockwny. 31 N. Y. ‘ Warm mt. J., in Liptrot 0. Holmes, Neal"'· Hanson, 60 l'tle. 84. 490; Heid"· Colcock, 1 Nott & llcC.

1 Kelly, 351, 391. Sec Hare 0. Pear- 1 Greene"· Mead, 18 N. H. 505. Tr0- 502; West Jersey R.H. Co,"· Trenton, son, 4 lred. 76; Gilman 0. Hill, 36 N. ver for parish records bas been eus.. H.311; Boyce v. lirockway. 31 N. Y. etc., Co., 32 N. J. 517; Webber"· Da..

490; Reid 1:. Colcock, 1 Nott & )IcC. tained. Baker "· Fales, 1G }[ass. 487; vis, 44 Mc. 147.

592; West J crsey R. R. Co. 0. Trenton, Stebbins "· Jennings, 10 Pick. 172; 'Thompson "· Currier, 24 N . H. etc., Co., 32 N. J. 517; Webber 0. Da- Sawyer"· Baldwin, 11 Pick. 492. 237; Pickering 'I). Colcm:m, 12 N. H. vis, 44 Me. 147. ' Osgood"· Howard, 6 Me. 452; Rus. 148; Shaw "· Pcckctt, 2J Vt. 423; ° Thompson 0. Currier, 24 N. H. eell "· Ricl.rnrds, 11 ~le. 871; llil born Blood"· Sayre, 17 Vt. 609.

237; Pickering v. Coleman, 12 N. H.

148; Shaw Pcckctt, 25 Vt. 423;

Blood u. Sayre, 17 Vt. 609.

Original from 19 IZ UNIVERSITY OF ICHIG N - - - ~ Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google wnonos T0 PERSONAL PROPERTY. 449

Therefore, if one hire a horse to go to one place, and drive him WRONGS TO PERSONAL PROPERTY. 449 to another, this is a conversion, though he return him to the

owner.‘ “ The word conversion, by a long course of practice,

has acquired a technical meaning. It means detaining goods so Therefore, if one hire a horse to go to one place, and drive him as to deprive the person entitled to the possession of them of his to another, this is a conversion, though he return him to the dominion over them.” ' “Any asportation of a chattel for the use owner.1 "The word conversion, by a long course of' practice, of a defendant or a third person amounts to a conversion, for this simple reason: that it is an act inconsistent with the general right has acquired a technical meaning. It means detaining goods so of dominion which the owner of the chattel has in it, who is as to deprive the person entitled to the possession of' them of his entitled to the use of it at all times, and in all places. Wlien, dominion over them."' "Any asportation of a chattel for the use therefore, a man takes that chattel, either for the use of himself or of another, it is a conversion.”' The act must, indeed, be of a defendant or a third person amounts to a conversion, for this intended, and not merely accidental or negligent; ‘ but it is not simple reason: that it is an a.ct inconsistent with the general right necessary that the result which actually follows should have been

contemplated. Thus, an agent has been held liable in trover ot' dominion which the owner of the chattel has in it, who is who, being intrusted with a note to get it discounted, and expressly entitled to the nse of' it at all times, and in all places. When, directed not to let it go without the money, allowed another to therefore, a man takes that chattel, either for the use of himself take it to obtain the discount, who did so, but appropriated the proceeds.‘ Here was a distinct wrongful act in the agent, and or of another, it is a conve1·sion." • The a.ct must, indeed, be not a mere negligent failure in the performance of a duty con- intended, and not merely accidental or negligent;• but it is not ﬁded to him. So one having property entrusted to him to sell, necessary that the result which actually follows should ha,·e been is liable in trover if he exchanges it for other property, this being beyond his authority.’ So is the vendee in a conditional sale, if contemplated. Thus, an agent has been held liable in trovcr he disposes of the article before he has acquired any property by who, being intrusted with a note to get it discounted, and expressly

' Homer 0. Thwing, 3 Pick. 492;

Rotch o. Hawes, 12 Pick. 130; llorsely directed not to let it go without the money, allowed another to

0. Branch, 1 Humph. 199; Crockcr o. take it to obtain the discount, who did so, hut appropriated the Gullifer, 44 Me. 491; Fisher o. Kyle, proceeds.• Here was a distinct wrongful act in the agent, and 2'7 Mich. 4-‘:4; Hall 0. Corcoran, 107

Mass. 251. not a mere negligent failure in the pedormance of a duty con ' Mxnrm, B., in Burroughes 0. fided to him. So one having property entrusted to him to !:'ell,

Bayne, 5 H. & N. 296, 302. For -one

to put another’s cow in his own pas- is liable in trover if he exchange:i it for other property, this bring ture without authority is proof of a beyond his authority.• So is the vendee in a conditional sitle, if conversion. lrcland 0. Horseman, 65 he disposes of the article before he has acquired any property by

Mo. 51]. So it is conversion for one to

take goods from a seizing otﬁcer on a

defective writ of replevin. Adams 0. 1 Homer •· Th wing, S Pick. 492; A mere delay to deliver property by

McGlinchy, 62 Me. 533. Rotch"· Hawes, 12 Pick. 130; Horsely a carrier is no conversion. Briggs

' Annanson, B., in Fouldes o. Wil- "· Branch. 1 Humph. 100; Crocker"· "·New York, etc., R. R. Cu., 28 BarlJ. loughby, 8 M. & W. 540. Gullifer, 44 Me. 491; Fisher "· Kyle, 515. ‘ Simmons v. Lillystonc, 8 Exch. 27 Mich. 4-i4; Hall 11. Corcoran, 107 ' Lnverty "· Snethen, 68 N. Y. 522. 431. Bee Bowlin 0. Nye, 10 Cush. 416. :Mass. 2.'H. The court cite and rely upon Byeds "· A mere delay to deliver property by ' MARTIN, B., in Burrottghea "· Hi&y, 4 T. R. 200; Spencer e. Black. a carrier is no conversion. Briggs Bayne, 5 H. & N. 296, 802. For·one man, 9 Wencl.167; .Mc!lorris "· Simp. v. New York, etc., R. R. Co., 28 Burb. to put another's cow in his own pas. son, 21 Wend. 610, nnd distinguish 515.

‘ Lavcrty 0. Snethen, 68 N. Y. 522. ture without authority is proof of a the case from those in which the

The court cite and rely upon Syeds o. conversion. Ireland "· Horsemim. 65 agent did nothing he was not i&utbor.

Hay, 4 T. R. 260; Spencer 0. Black- :Mo. IH l. Bo it is conversion for one to ized to do, but d:sobcyed instructions man, 9 Wend.167; Mchiorris v. Simp- take goods from a seizing officer on a in doing it. Dufresne"· Hutchinson, son, 21 Wend. 610, and distinguish defective writ of replevin. Adams"· 8 Taunt. 117; Sarjeant "· Blunt, 16 the case from those in which the :McGlinchy, 62 lie. 533. Johns. 74; Palmer "· Jarmain, 2 M. agent did nothing he was not author- • A.LDKRBON, B., in Fouldee "· Wil. & W. 282; Csimes e. Bleccker, 12 ized to do, but disobeyed instructions loughby, 8 M. & W. MO. Johns. 800. And, see Dean e. Tur in doing it. Dufresne v. Hutchinson, ' Simmons 11. Lillystone. 8 Exch. ner, 81 Md. 52. 3 Tauut. 117; Sarjeaut 0. Blunt, 16 '81. &e Bowline. Nye, 10 Cush. 416. 1 Jolms. '74; Palmer v. Jermain, 2 M. Haas "· Damon, 9 Iowa, 589.

& W. 282; Cairnes o. Bleeeker, 12 29

Johns. 300. And, see Dean o. Tur-

ner, 31 Md. 52.

‘ Haas v. Damon, 9 Iowa, 589.

29 Original from DI IZed b UNIVERSITY OF MICHIGAN Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 450 THE LAW or TORTS.

making payment.‘ So, if one obtains property by fraudulently 450 THE LAW OF TORTS.

pretending to have a lien upon it when he has not, the owner, though he delivered possession when the fraudulent claim was ma.kin~ payment.1 So, if one obtains property by frandnlently made, may bring trover for the value, the taking from him being pretending to have a lien upon it when he has not, the owner, wrongful.’ So if an oﬁicer levies upon property which is exempt from execution, and proceeds to a sale of the same, the owner though he delivered possession when the fraudulent claim was may treat this as a conversion.‘ But a bailee will not be liable made, may bring trover for the ~alue, the taking from him being in trover for a loss of the property through larceny or negligence, wrongful.' So if an officer levies upon property which is exempt though he might be, perhaps, on his implied contract of bailment.‘ And where a bank was entrusted with bonds for safe from execution, and proceeds to a sale of the same, the owner keeping. which, when called for, were found to be gone, and the may treat this as a conversion.• Bnt a bailee will not be liable evidence tended equally to show that they had been lost, stolen,

or misdelivered. it was held trover would not lie, since it could in trover for a loss of the property through larceny or negligence, only be for a misdelivery that the bank, under the circumstances, though he might be, perhaps, on his implied contract of bail could be liable, and the misdelivery was not established.‘ In ment.• And where a bank was entrnste

him of the fact, is not guilty of conversion, but is liable only for or misdeli\•ered. it was held trover wonld not lie, since it conld an accounting.‘ only be for a misdelivery that the bank, under the circumstances, When'tl1e mortgageor of chattels is left in possession, he has could be liable, and the misdelivery was not established.• In not only such a special property as will enable him to maintain

trover against a wrong-doer, but he has also, in his right of any case, the act of a. bailee that shall l\mount to a con version redemption, a property which is or may be valuable, and which must be inconsistent with the hailment, and known hy him to he may lawfully sell in recognition of the right of the mortgagee. be so. Therefore a commission merchant who continues to make Such a sale is therefore no conversion of the m0rtgagee's interest.’

But a sale in denial of the mortgagee‘s right would be a con ver- sales after his authority has terminated, hnt without notice to sion in him, and. perhaps, in the purchaser also. It would cer- him of the fact, is not guilty of conversion, bnt is liable only for tainly be a conversion in the purchaser, if he took the property

'Sargento.Gile,8N. H. 325; Grace 318. Nor does the larceny of the an acconnting.•

0. McKissack, 49 Ala. 163. S0 is the When· the mortgageor of chattels is left in possession, he has purchaser from him. Eaton 0. Mun- not only such a special property as will enable him to maintain roe, 52 Me. 63.

' Dudley v. Abner, 52 Ala. 5'72. trover against a wro!l~-docr, but he has also, in his right of

‘ Sanborn 0. Hamilton, 18 Vt. 590. redemption, a property which is or mny be valuable, and which ‘ Hawkins v. Hoffman, 6 Hill, 586; he may lawfull.Y sell in recognition of the right of the mortga_!!ce. Packard 0. Getman, 4 Wend. 613. A mere negligent injury is no conver- Such a sale is therefore no con version of the mortgagee's interest.' sion. Nelson o. Whetmorc, 1 Rich. But a sale in denial of the mortgagee's right would be a conver ii __ —i L? -~k—-mi

goods from an oﬂicer render him liable sion in him, and. perhaps, in the purchaser also. It would cer in trover. Dormun v. Kane. 5 Allen, tainly be a conversion in the purchaser, if he took the prop.::irty

38.

° Deurbourn 0. Union Nat. Bank,

58 Me. 273. 1 Sargent"· Gile, 8 N. H. ~25: Grace 318. Nor doC'!I the lnrceny of the

° Jones o. Hodgkins, 61 Me. 480. "· McKissack, 49 Ala. 16.3. So is the goods from an officer render him liable See. for the same principle, Fiﬁcltl 0. purchRSer from him. Eaton "· Mun. in trover. Dorman ti. Kane. 5 Allen, Maine Cent. R. R. Co. 62 Me. 77. roe, 52 :&le. 68. 88. ‘ White 0. Phelps, 12 N. H. 382. • Dudley"· Abner, 52 Ala. 572. • Dcarbourn "· Union Nat. Hank, 'Sanborn"· Hamilton, 18 Vt. 590. 58 Mc. 27a. • Hawkins "· Hoffman, 6 Hill, 586; •Jones "· Hodgkins, 61 Me. 480. Packard"· Getman, 4 Wend. 618. A See. for the same principle, Fifield"· mere ne11:ligent injury is no conver. Mninc Cent. R. R. C.l. 62 ~le. i7. aion. Nelson •· Whetmorc, 1 Rich. 1 White ti. Phelps, 12 N. H. 382.

the mortgagee’s rights afterwards.‘

Neither the ﬁrst mortgagee, nor one to whom he has sold the on a purchase of the whole interest, and persisted in a denial of property, is liable in trover to the second mortgagee. Having

the right of possession defeasable only on performance of the the mort~'e rights afterwards.' condition of the mortgage, he may assign his mortgage and sell Neither the first mortgagee, nor one to whom he hM sold tho his mortgaged property to a third person, subject only to the property, is liable in trover to the second mortgagee. Having right of redemption of the mortgageor and those who claim under

him.’ But it seems that he cannot sell out the property in par- the right of possession dcfeaeable only on performance of the cels, and if he should, trover would lie, as this would impair, and condition of the mortgage, he may assign his mortgage and sell

perhaps defeat the right to redeem .’ h0is mortgaged property to a third person, subject only to the One who buys property must, at his peril, ascertain the ownership, and if he buys of one who has no authority to sell, his taking right of redemption of the mortgagror and those who claim under possession, in denial of the owner’s right. is a conversion.‘ The him.' But it seems that he cannot sell out the property in par vendor is equally liable, whether he sells the property as his own

or as officer or agent; and so is the party for whom he acts, if he cels, and if he should, trover would lie, as this would impair, and assists in or advises the sale.‘ So it is no protection to one who perhA.ps defoat the right to redeem.• has received property and disposed of it in the usual course of One who bnys property must, at his peril, ascertain the owner trade, that he did so in good faith, and in the belief that the per-

‘ See this discussed in Millar v. Al- ship, and if he buys of one who has no authority to selJ, hie taking len, 10 R I. 49, where Dumrnn, J., possession, in denial of the owner's right. is a conversion.• The

cites and comments upon Ashmead 0. vendor is equalJy liable, wh~ther he sells the property as his own Kellogg. 28 Conn. 70, and Coles 0.

Clark, 3 Cush. 399, with approval, and or as officer or agent; and so is the party for wl10m he acts, if he refers also to White 0. Phelps, 12 N. assists in or advises the sale.• So it is no prote<"tion to one who

H. 882; Bellune o. Wallace, 2 Rich.

80; Spriggs v. Camp, 2 Speers, 181. has received property and dillposed of it in th(' usual coarse of

' Landon u. Emmons, 97 Muss. 37, trade, that he did so in good faith, and in the belief that the per-

citing Homes 0. Crane, 2 Pick. 610.

He may be liable if he assunes tosell tlty or whose property is li"1st, by be the complete title. Ashmead 0. Kel- • See this discull.'led In llillar o. Al

logg, 23 Conn. 70. len, 10 R. I. 49, where DuRPB&, J., ing commingled with aomething aif.

3 Spaulding o. Barnes. 4 Gray, 380. cites and comments upon Ashmead"· ferent may claim the whole, ao be

It would seem, however, that it‘ the Kellogg, 98 Conn. '70, and Coles o. may treat the commingling as a con mortgage was past due, this should Clark. 8 (,'uab. 899, with approval, anti Vl'rsion. at bis election. be regarded as foreclosure and satis- refers alao to White e. Phelps, 12 N. •)tiller ti. Thompson, 6~ Me. 822. faction to the extent of the sales. H. ~; Bellone e. Wallace, 2 Rieb. Another who c·1ntributC"8 to the pur. Trover will lie against mortgagee 80; Spriggs e. Camp, 2 Speers, 181. cbaae price. and gets the ve!IS<'I in who sells before condition broken. I Landon "· Emmons, 97 Muss. a7, sured in his own n11me, will be jointly Eslow v Mitchell, 26 Mich. 500. citing Homes o. Crane, 2 Pick. 610. liable with him. Id. Sec Hyde e. It is a conversion to draw oil‘ part He may be liable if be asaunes to itell of a cask of liquor and ﬁll it up with Noble, 13 N. H. 494; Clark ~.Hide. water. Richardson v. Atkinson, 1 the complete iitle. Ashmead e. Kel out, 89 N. II. 2 ·s: Williama"· ){C"rle,

Stra. 576. And while one, the iden- logg, 28 Conn. '70. 11 Wend. 80; Abbott e. )by, 30 Ala. tity of whose property is lost, by be- ; Spaulding o. Barn«>s, 4 Gray, 880. 97. ing commingled with something oif- n would seem. however, that if the •Billiter e. Young, 6 El. & Bl. 1; ferent may claim the whole, so he mortgage was past due, this should Cooper ti. Chitty. Burr. S: Garland may treat the commingling as a con- be regarded aa foreclOBure and aatis e. Carlisle, 4 CJ. & F. 698; Moore "· version. at his election. faction to the extent of the aalf'I. Eldred, 49 Vl 18: Calkin" "· I.ock ‘ Miller o. Thompson, 69 Me. 322. Trover will lie against mortgagt.-e W·•od, 1'7 Conn. JM. A town officer Another who C'vnt..*ibnt1's to the pur- who sells before condition broken. chase price. and gets the vessel in- who removee a quantity of fcn<'e from

sured in his own name-,will bejointly Eslow e Mttcbell, 96 Mich. 300. &he laod of its owner, ml11takcnly sup. liable with him. Id. See Hyde 0. It la a conversion to draw off part posing it to belong to the town. is

Noble, 13 N. H. 494; Clark 1:. Ride- or a caak of liquor and fill it op with liable for the value in trover. Smith out, 39 N. ii. 2‘8: Williams v. Merle, water. Rlcbard90D e. Atkin1<>a, 1 e. Colby, 67 .Me. 169. 11 Wend. 80; Abbott 0. May, 50 Ala. 8&ra. 676. And while one, the iden.

97.

‘ Biilitcr r. Young, 6 El. & 131.1;

Cooper 0. Chilly. Burr. 3; Garland

0. Carlisle, 4 Cl. & F. 693; Monre v.

Eldred, 42 Vt. 18; Culkins e. Lock-

w--011,17 Conn. 155. A town oﬂicer who removes a quantity of fence from Original from the land of its owner, mistakenly sup. Dig iz b posing it to belong to the town, is UNIVERSITYO F ICHIG N

liable for the value in trover. Smith

tn. Colby, 67 Me. 169. Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google Mt~. "r1\ll.t ~ llO. p.)~: • • 'I. fZL<,I~, ~v.~, ?'~~/Pt/;~~- ~ ~ f. floi-t ..re~~/ .J) ~ ~ ·.... "4u~/i'!°.-?. ~~~~f/J~'~4'"~~~ ~ ~

\‘ H, ‘F

hi ~~~ti~ ~cL,~ r-,,{J;E"L~O~~~_;~-<-~~ /l•U,.•-"r'A,,. 11•'-llL~ ~ -- ?t::; 1/./9»/1.t/*F’_4/4»/ztyz-»L., L/'~~ 1-£/£72-/9 a

>*~>< -U ::V 4._ .(; eon from whom he took it was owner, if in fact the possess1 ":f::;.__ ; 4:.‘ I ')t,,,~' i~of the latter was tortions.'""But merely receiving property from 1»—¢-1/1-4.4- . "'<~ "1-Q?

"I’1§‘LAw OF ms 2' ” '"’/ '4 ~ ~the wrongful possessor, and returning it before notice of his

‘T T ‘. . ¢< ~ ~ ~ ,·want of title, is no conversion.1 Nor is it a conversion merely to ¢¢z¢---/ .uu~/#3 @1114 /~/£5271‘/iv 5;-7‘ t 2; ~~Y~ assist a mortgageor to remove the goods from one place to another, “U4 / son from whom he took it was owner, if in fact the possessi ‘Q

4'4? of the latter was tortious.'*But merely receiving property from \ ~ ~ the mor~ooeor being left in possession.• But one who assists in § :7 Z the wrongful possessor, and returning it before notice of his ':{,~";/ 'a''- a wrongful taking of g•lods is liable, though he acted as agent Z‘ 4* /' want of title, is no conversion.‘ Nor is it a conversion merely to ~A._~ merely, for agency cannot be ret'Ognized as a protection in wrongs.• ﬁx ‘R, assist a mortgageor to remove the goods from one place to another,

.4!’ Q the mortgageor being left in possession.‘ Butone who assists in . ~'- ""¥_"._ So if one hires a horse for another, who drives it to death, while ¥;( Qa wrongful taking of goods is liable, though he acted as agent '~-· ~~-the hirer drives another beside it, the two are jointly liahle to the it K merely, for agency cannot be recognized as a protection in wrongs.‘ 17~~)>wner in trover.• But it is no conversion to find a purchaser for Q14 So if one hires a horse for another, who drives it to death, while lxthe hirer drives another beside it, the two are jointly liable to the ~ · .t:...,~ one who wrongfully sells the goods, even though defendant also jﬂrowner in trover.‘ But it is no conversion to ﬁnd a purchaser for 'ti., ~~eccives the proceeds of the sale, applying them on a demand one who wrongfully sells the goods, even though defendant also '"\ against the owner.• ... .\ Kreceives the proceeds of the sale, applying them on a demand against the owner. \ Cc ~ 7{" ~ """"l'U'.

¢./ 7? ,-M--'. . '1'Demand of Poaar88ion and RetaSal to Deliver. Where the

Demand of Poss 881011 and Refusal to Deliver. Where the defendant has come into the possession of property )awfolly or defendant has come into the possession of property lawfully or without fault, it is in general necessary to make demand of pos without fault, it is in general necessary to make demand of pos-

session of him before suit will lie. “\Vhat is meant by one session of him before snit will lie. " \Vhat is meant by one coming lawfully into possession of the property is, where he coming lawfully into possession of the property is, where ho

' Hardman o. Booth, 1 H. & C. 808;

Hollins 0. Fowler, L. R. '7 H. L. Cas. 1 1 757; S. C. 14 Moak, 188; S. C. in Ex. Hardman "· Booth, 1 H. & C. 803; Banfield"· Whipple, 10 All1•n. 27.

Ch. L. R. 7 Q. B.6l6; S. C. 3 Moak. 232. Hollins "· Fowler, L. R 7 H. L, Cas. 8 Pr~sley "· Powers, 82 Ill. 125.

' Ilill 0. Hayes, 38 Conn. 532. The 737; 8. U. 14 Moak, 188; S. C. in Ex. The case wRS peculiar. A married assignee of one who holds goods for Ch. L. R 7 Q. B. 616; S. C. 3 lfoak. 282. woman bought the i;roods on credit, sale, with a lien upon them for a cer- 'Hill"· Hayes, 88 Conn. 5a2. The and dif'd before paying for them. tain amount in his own favor, is lia- assignee of one who holds goods for The creditor called on the husband ble in trover if he proceeds to sell sale, with a lien upon them for acer. for payment, finding him in posses. them. For, though he has a right to tain amount in his own f1&vor, is lia session. The husband offered to s•'ll retain them until the lien is satisﬁed, ble in trover if he proceeds to sell back the goods, but the creditor de.. the authority to sell is a personal them. For, though he has a right to clincd to purchase, offering, however, trust, and cannot be assigned. Terry

0. Bamberger, 44 Conn. 558. retain them until the lien is satisfied, to find a purchaser, which he did.

' S'rickland 0. Barrett, 20 Pick. 415. the authority to sell is a personal The husband sold to the purchaser,

See Sparks 1:. Purdy, 11 Mo 210; Nel- trust, Md caonot be assigned. Tei ry handing the proc<'c

0. Miller, Stra. 128. I s·rickland "·Harrett, 20 Pick. 415. brought by the administrator of the

‘ McPartland '0. Read, ll Allen, 231; See Spinks"· Purdy, 11 llo 21D; N el. wife against the credit.or, held, no Edgerly v. Whalan, 106 Mass. 307. son"· Whetmore, 1 Rich. 818; Bushel conversion by him. It is a conversion to buy from tr: s- "· Miller, Strn. 128. Where the horses of one man w<>re pnssers fruit stolen from the plain- • 1\1 c Partland "· Rend, 11 Allen, 231 ; taken for government use as the pro1l tiﬁ"s land. Freeman u. Underwood, Edgerly "· Whalan, 106 Mass. 807. erty of another, 1md the lntt~r was 66 Me. 229. It is a conversion to buy from tr1 S allowed and paid the price thcrc·for, ‘ Banﬁeld 0. Whipple, 10 AHPD. 27. pai-~ers fruit st<•len from the plnin l1~ 1 d, to be n conver~inn by him. ‘Presley o. Powers, 82 lll. 125. 11. The case was peculiar. A married tiff 's land. Freeman Undcnrnod, Thomas "· Bt.cinhcimer, 29 Md. 268.

woman bought the goods on credit, 66 Me. 229.

and died before paying for them.

The creditor called on the husband

for payment, ﬁnding him in posses-

session. The husband otfered to svll

back the goods, but the creditor de-

clined to purchase, otfering, however,

to ﬁnd a purchaser, which he did.

The husband sold to the purchaser, Original from D ti by handing the proceeds over to the e --•UNIVERSITYOF ICHIG N creditor. On suit being subsequently

brought by the administrator of the

wife against the creditor, held, no Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

conversion by him.

Where the horses of one man were

taken for government use as the prop-

erty of another, and the latter was

allowed and paid the price therefor,

he’d. to be a conversion by him.

Thomas v. Stuinlieinier, 29 Md. 268. - - -.,..-;-

- 4~— "J - .. ' '7"-_ l

_ I/J _; 4 '_ \

I WRONGS TO PERSONAL PROPERTY. 453

» WRONGS T0 PERSONAL rnornnrv. 453

ﬁnds it and retains it for the true owner, or where he obtains the finds it and retains it for the true owner, or where he obtains the possession ot' the property by the permission or consent of the possession of the property by the permission or consent of the plaintiff, as where the relation of bailor and bailee exists. In

this latter class of cases a demand and refusal would be neces- plaintiff, as where the relation of bailor and bailee exists. In sary, unless it could be shown the defendant had appropriated this latter class of cases a demand and refnsal would he neces the article so found tn his own use, or had disposed of the prop- sary, unle88 it could be shown the defendant had appropriated erty bailed contrary to the terms and stipulations of the contract of bailment.”‘ An instance has been given of an abuse of the the article so found t.o his own use, or had dh•posed of the prop contract of bailment in the case of property hired for one pur- erty bailed contrary to the terms and stipulations of the c.-ontract pose and appropriated or used for another. In such a case the of bailment."' An instance has been given of an abnse of the abuse terminates the bailment, and the owner may retake his property without demand, or sue for its value. It has been contract of bailment in the case of property hired for one pur made a question whether the pledgee of property repledging it pose and appropriated or used for another. In such a case the without authority before the debt is pajd,__{<{_._\vhich he held it.

docs not thereby terminate the bailnient s as Itourénidef him abuse terminates the bailment, and the owner may retake liis r liable for a conversion; but it is settled that he does not.‘ property without demand, or sue for its valne. It has been •. Neither would he had the pledge been sold instead of repledged.‘ made a question whether the pledgee of property repledging it _.. This, it will be observed, was a case in which the plaintiff was not, according to the contract of bailment, entitled to have the without authority before the debt is P,ajJ,.(~r, .wh~~~ l!e, l~~l it. • ···· property restored to him until his debt was paid. Had the docs not thereby terminate the bail men t ~ 88 to renuef him pledgee held the property subject to the owner’s order, a sale‘ or liable for a conversion; but it is settled that he docs not.2 a mere delivery t.o another, without right,’ would have constituted 2 aconversion and rendered demand of possession unnecessary. .Neither would he had the pledge been sold instead of rcpledged. And he would have held it subject to the owner’s order had he This, it will be observed, was a case in which the plaintiff was purchased it of one who had no authority to sell it.‘

A man acquires rightful possession of chattels if they are not, ac<.-ording to the contract of bailment, entitled to ha,·e the upon land at the time he recovers it in ejectment, and trover property restored to him until his debt waa paid. Had the will not lie for their conversion until after demand and refusal pledgee held the property subject to the owner's order, a sale• or ' Wanxxn, J., in Liptrot o. Joncs,1

Kelly, 381, 391-2. See Dean c. Tur- a mere delivery to another, without rigl{t,• would han~ con:;titutcd ner, 81 Md. 52. a conversion and rendered demauei.sion Lmneccssary. ’ Donald 0. Suckling, L. R. 1 Q. B. And he would have held it subject to the owner's order had he 585.

' Halliday 0. Holgate, L. R. 8 Exch. purchased it of one who had no authority to sell it.• 299. Compare Bulkeley o. Welch, 31 A man acc1nires rightful possession of chattels if they are

Conn. 339; Baltimore, etc., Co. 0.

Dalrymplc, 25 Md. 269; Lawrence 0. upon land at the time he i·ecovers it in ejectrnent, and tro\'cr

Maxwell, 53 N. Y. 19. will not lie for their conversion until after dcmaud and refu~al

‘ Bloxam 0. Hubbard, 5 East, 407.

‘ Sycds 1:. Hay, 4 T. R. 260.

‘ Kimball 0. Billings, 55 Me. 147, 1 W A.RNER. J., In Liptrot ti. Jones, 1 citing Coles 11. Clark, 8 Cush. 899. citing Coles 0. Clark, 3 Cush. 899. Kelly, 381, 301-2. See Dean ti. Tur The property was government bonds, The property was government bonds, ner, 81 Md. 52. received and sold liy the defendant in received and sold by the defendant in ' Donald ti. Suckling, L. R. 1 Q. B. good faith, but of course his good good faith, but of course his good 585. faith could not protect him when faith could not protect him when 1 Halliday t1. Holgate, L R. S Exch. sued by the owner for the conversion. sucd by the owner for the conversion. 299. Compare Bulkeley t1. Welch, at It was held in Gilmore o. Newton, 9 It was held in Gilmore u. Newton, 9 ti. Allen, 171, that ouc who receives pos Allen, 171. that one who receives pos- Conn. 339; Baltimore, etc., Co.

session from another who had no Dalrymple, 25 Md. 269; Lawrence v. session from noother who had no right, and treats the property as his llaxwell, 53 N. Y. 19. right, and treats the property as his own, is not entitled to a demn- d. 'Bloxam v. Hubbard, 5 East., 407. own, is not entitled to a demn· d.

Sec, also, Trudo 0. Anderson. 10 Mich. 1 Sycds ti. Hay, 4 T. H. 200. See, also, Trudo v. Amlerson. 10 ~lich. 357; Prime 0. Cobb, 63 Me. 200. • Kimball •· Billing:i, 5.'.i Me. 147, 857; Prime ti. Cobb, 63 Me. 200.

Original from 19 IZ UNIVERSITY OF ICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 454 THE LAW or TORTS. . to allow the plaintiff to take them away.‘ There need, howe-ce:". 454 TUE LAW OF TOl~TS. • be no formal demand in such a ease, for if the owner atteim ts to remove his property, and is not suffered to do so, his attempt • to allow the plaintiff to take them away.' There need, how·en•:·, is equivalent to a demand.’

The refusal to surrender possession in response to a demand be no formal demand in such a case, for if the owner attl•m; t~ is not of itself a conversion; it is only evidence of a conversion, to remove his property, and is not suffered to do so, his attt·111 pt and like other inconclusive acts is open to explanation.’ It may,

for instance, be shown that the property has perished, or been is equivalent to a demand.' lost without the bailee’s fault, and that he does not surrender The refusal to surremler possession in re::ponse to a demand possession simply because it has become impossible.‘ In any is not of it13elf a eooveri;ion; it is only evidence of a <.'On version, case where at the time of the demand the defendant has neither

the actual nor constructive possession, and, therefore, c:1nn0L and like other inconclusive acts is open to explanation.• It mny~ deliver the property in response to the demand, his liability is in for instance, be shown that the property has perished, or hl"<'ll no manner affected by the demand and refusal; ior if he had lost without the bailee's fault, and that he does not surreudcr been guilty of a conversion before, the demand was unnecessary, and if he had not been, a failure to do what for any reason he possession simply because it has become impossible.• In a11y was unable to do, could not render him so. Still the demand case where at the time of the demand the defendant has neither may, even under such circumstances, have this importance: it

may put the defendant apparently in the wrong, and throw the actual nor constructive posses::;ion, and, therefore, c:umot upon him the burden of showing why he fails to surrender the deliver the property in response to the demand, his liahility ii!> in property.“ no manner aflected by the demand and refusal; tor if be hat.l 'Thorogood v. Robinson, 6 Q. B.

769. See Witherspoon 0. Blewett, 47 been guilty of a con\"ersion before, the dc1111:1.ml was unneee13s:1ry,

Miss. 570. and if he had not been, a failure to do what for any reaiwn he ' Badger 0. Batavia Paper Co., '70 was unable to do, could not render l1im so. Still the

62 Me. 490. Merely selling and giving may, even under such circumstance:;, have this importance: it a deed of land by the landlord is no may put the defend2Lnt apparently in the wro:ig-, and throw conversion of the tenant‘s ﬁxtures;

the tenant's right to take them away upon him the burden of showing why he tails to surrender the is not affected by the convt~_vance. property.•

Davis 0. Bulfum, 51 Me. 160, citing

Burnside 1:. Twitchell, 43 N. H. 390.

‘Thompson v. Rose, 16 Conn. '71; 1 Thorogood "· R,.,binson, 6 Q. B. 51. See Griffith ti. Zl1>penwick, 28

Bturges v. Keith, 5'7 Ill. 451; (‘oﬂln 12. 769. See Witherspoon t1. Blewett, 47 Ohio, (N. s) 888. Anderson, 4 Blackf. 395; Beckman o. Miss. t170. 1 D1wis "· Buffum. 51 Me. 160. Re Mcl{:\y,14 Cal. 250; Diulus '0. Fuss, 1 Badger ti. Batavia Paper Co., 70 fu.'lal to <'omply with a premnture 8 Md. 148. Ill. 802. See, also, Woodis 1'. Jordan, demnml Is no evidence of cnm·en;ion.

‘ Deurbourn 0. Union National 62 Me. 490. Merely selling and giving Hagar "· R~ndall, 62 l\fo. 4:19. If Bank, 58 Me. 273; Jcffi-rson 1*. Hale, a deed of land by the landlord is no demllnd is made by an agpnt, and is 81 Ark. 286. As wlnre it was taken conveN1lon of the tenant's fixtures; not complied with because·the ag-1>nt from him by an armed force without

his fault. Abraham v. Nunn. 42 Ala. the tenant's right to take them away gives no evidence of authority, this

-- — s ~— —_ <_~,_--_=-1 Is not affected by the conv1·pmcc. does not make out a conversion. Watt

51. Bee Griffltli 0. Zippenwick, 28 Davis ti. Buffum, tll Me. 160, C'iting "· Potter. 2 Mason, 77. Compare In Ohio, (N. s) 388. Burnside "· Twitchell, 43 N. H. :mo. galls"· Bulkk•y. 15 Ill. 224; Uobinson ' Davis v. Butfnm. 51 Me. 160. Re- •Thompson 11. Rose, 16 Conn. 71; "· Hurleigh, 5 N. II. 225. i:!o, if de fusal to comply with n preninture BturgE'8 "· Keith, tl7 Ill. 451 : Coffin "· mand Is made o i an agl.'nt for prop. demand is no evidence of conversion. Anderson, 4 Blackf. 895; Beckman "· crty l1eld by him for his prineipsl, Hagar e. Randall, 62 Me. 439. If MeKny, 14 Cal. 250; Dictus "· Fu

does not make out a conversion. Watt Bank, 58 l\le. 273: Jefft•rson r. Hale, demand the property ts present. and

0. Potter. 2 Mason, 77. Compare ln- 81 Ark. 286. AB whlre it wa.q taken no ol1jertion is made to its l><'ing gnlls v. Bulkley. 15 HL224; Robinson from him by an armed force without taken, and the only rl·fus:il is a refus:U 0. Burleigh, 5 N. II. 225. So, if de- his fault. Abraham "· Nunn, 42 Al:L to carry and deliver it to the owner at

mand is made 01 nn agent for prop.

orty held by him for his principal.

his refusal to deliver does not render

him liable in trover. Carey v. Brizht,

58 Penn. St. 70 If at the time of

demand the property is present. and no objection is made to its bi-ing • Original from taken, and the only rt-fusril is a refusal D liz by to carry and deliver it to the owner at UNIVERSITYO F ICHIG N ·--- --!Ill Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google \VllOl\'GS TO PERSONAL PROPERTY. vb- WRONGS TO PERSON.AL PROPERTY. 455

q;|

:_;| Oonvel'llion by Tenant in Common. The authorities are irre

Conversion by Tenant in Common. The authorities are irre-

concilably at variance as to what may constitute a conversion by concilably at variance as to what may constitute a conversion by one tenant in common of his co-tenant’s interest, agreeing only in one tenant in common of his co-tenant's interest, agreeing only in this, that a culpable loss or destruction by one will render him this, that a culpable 1088 or destruction by one will render him liable.‘ The rule in England is that neither a claim to exclusive

ownership by one, nor the exclusion of the other from posses- liable.' The rule in England is that neither a claim to exclusive sion, nor even a sale of the whole, can be treated in the law as ownership by one, nor the exclusion of the other from pus~es

the equivalent of loss or destruction, or be considered a conversion, uor even a sale of the whole, can b~ treated in the lnw as si0n;’ and this rule is adopted in some cases in Vermont,“ and in North Carolina it is also followed, but with this qualiﬁcation, the equivalent ot' 1088 or destruction, or be considered a conver that a sale of the property out of the State may be treated as a sion; 1 and this role is adopted in some case,; in Vermont,1 and loss or destruction.‘ But in other eases any sale of the whole

interest by one tenant in common has been held a conversion.‘ in North Carolina it is also followed, bnt with this qualification,

And in still others it has been held that even a sale is not neces- that a sale of the property out of the State may be treated as a sary to make out a conversion; that the doctrine that one tenant loss or destruction.' But in other rascs any sale of the whole in common cannot maintain trover against his co-tenant without proving a loss, destruction, or sale of the article, applies only to interest by one tenant in common has been held a conversion! things in their nature so far indivisible that the share of one And in still others it has been held that even a sale is not neces cannot be distinguished from that of the other. It can have no sary to make out a conversion; that the

in severalty; and if his co-tenant in. actual possession refuse to things in their nature so far indivisible that the share of one surrender the half on demand, and deny his right, this is a eon- cannot be distinguished from that of the other. It can have no version, because it deprives him of his right as effectually as reasonable application to such commodities as a.re rl'n

And in Gilbert 1:. Dickerson, 7 Wend.

carried it. Farrar v. Rollins, 37 Vt. a certain number of bushels of wheat, he is entitled to the halt

295. in severalty; an

Hyde 0. Stone, 9 Cow. 230; White 0.

Brooks, 43 N. H. 402. version, because it deprives him of his right as effectually as

' Muyhcw o. Herrick, 7 C. B. 229.

See Barnardistone 0. Chapman, Bull. bla home, Lbta is no conTersion, even N. P. 34. See Symonds "· llarrh, lit lle. 1.(.

'Tubbs 0. Richardson, 6 Vt. 442; though defendant ooght to have so .And in Gilbert"· Dickcr:ion, 7 Wend.

Sanborn o. Merrill, 15 Vt. 700; Bar- carried ti. Farrar "· Hollins, 87 Vt 449, ll1e same ruling W&i made where ton 0. Burton, 27 Vt. 93. In Maine, the property was not only detained the mere cluim to the exclusive own- ••t Mayhew "· Derrick, '1 C. B. 229; &om the co.tenant, but locked op. ership of a horse is held to be no con- Hyde"· Stone, 9 Cow. 280; While "· ' Pit& e. Pctwcy, 12 Ired. 69. version. Dain 0. Cowing, 22 Me. 347. Brooks. 48 N. H. 402. •Will.on "· Reed, 8 Johns. 173; 449, the same ruling was made where • Mayhl!W •· Herrick, '1 C. B. 229. Hyde"· Stone, 9 Cow. 230; Gilbert"· • the property was not only detained Bee Barnardistone "· Chapman, Bull. Dickerson, 7 Wend. 44:.>; llumford o. from the co-tenant, but locked up. McKay, 8 Wend. 442; Dyckman "· ‘ Pitt 0:. Pctwcy, 12 Ired. 69. N.P.84.

' Wilson v. Reed, 8 Johns. 175; •Tubbs "· Richardson, 6 Vt. .f'9; Valleote, '9 N.1. MU; Weld"· Oliver

Hyde n. Stone, 9 Cow. 280; Gilbert 0. Bao born •· Morrill, 13 Vt. '700; Bar. 21 Pick. 559; While "· Brooks, 43

Dickerson, '7 Wend. -H1); .\iumford u. ton "· Burton, 2'1 Vi. 93. In Maine, N. H. 402; :Xcilson "· 8laJe, 49 A.la. McKay, 8 Wend. 442; Dyckinan 0. the mere claim to Lbe exclusive own 2::>3; Courts "· llapple, 49 Ala. 231; Valiente, 42 N. Y. 549; lvcld v. Oliver enhlp of a honie is held to be no con Gret'n o. Edick, 66 Barb. 364; Wbeel81' 21 Pick. 559; While 0. Brooks, -L3 Yeraion. Daine. Cowing, 22 Me. 847. "· Wheeler, 88 lie. 347.

N. H. 402; Ncilson o. Slade, 49 Ala.

253; Courts 0. Ilapple, 49 Ala. $34;

Green v. Edick, 66 Barb. 564; Wheeler

0. Wheeler, 38 Me. 347.

an interest in a machine which one of the tenants in common

had taken and annexed to the freehold, denying the right of the would a sale.' In a subsequent case this doctrine was applied to other.’ an interest in a machine which one of the tenant& in commGn Bailees. It is no conversion by a common carrier or other had taken and annexed to the freehold, denying the right of the bailee who has received property from one not rightfully entitled

to possession, to deliver it in pursuance of the bailment, if this other.'

is done before notice of the rights of the real owner.‘ After such notice he acts at his peril. A delivery to the party entitled Bailees. It ie no conversion by a common carrier or other to the possession will be a protection to him, and he may defend bailee who has received property from one not rightfully entitled in the right of such party before delivery.‘

Extent of Injury. Trover is most commonly brought when a to possession, to deliver it in pursuance of the bailment, if this complete conversion of the property has taken place, but as it is done before notice of the rights of the real owner.• After lies in all cases where one makes an unlawful use of another’s such notice he act.sat his peril. A delivery to the party entitled personalty, the injury is sometimes very small.‘ Thus, if one

‘CAMPBELL. J., in Fiquet e. Alli- to the possession will be a protection to him, and he may defend son, 12 Mich. 328, 331. See Ripley 1:. in the right of snch party before delivery.•

Davis, 15 Mich. 75. And see Clark v. Griiﬁth, 24 N. Y. 595. Of course Extent of Injury. Trover is most commonly brought when a trover will not lie where one has only

a right to have an undislinguished complete conversion of the property has taken place, but as it portion of a. greater quantity sot out lies in a11 cases where one makes an unlawful use of another's to him, but the title to which has personalty, the injury is sometimes v~ry small.' Th0t•, if one never passed. Morrison v. Dingley, 63

Me. 5525. See Browning 1:. Hamilton,

42 Ala. 484. 1 CAMPBELL, J., in Fiquet "· Alli. son "· Anderson, 1 B. & Ad. 4.50, Mor 'Grove -v. Wise, 38 Mich. See, eon, 12 l\Iich. 82.S, 331. See Ripley"· ris"· Hall, 41 Ala. 510. also, Strickland v. Parker, 54 M11263. Davis, 15 Mir.h. 75. And sec Clark 'Sheridan tl. New Quay Co. 4 C. B.

It is a conversion of a joint owner's 11. Griffith, 24 N. Y. 595. Of course (N. s.) 619; Ogle"· Atkinson, 5 TaunL interest in a note if the other joint trover will not lie where one hHs only 759; Thorne "· Tilbury, 3 H. & N. owner takes it for collection and sur- a. right to have an undistinguished 5a4; liiddle "· Bond, 6 Best & S. 225; renders it to the maker for cancel-

ment. Winner 0. Pennimnn. 35 Md. portion of a. greater quantity set out Hardman "· Willcock, D Bing. 382;

163. If one tenant in common takes to him, but the title to which has King t>. Uicluuds, 6 Whart. 418; Bates the joint property and disposes of it never passed. Morrison 11. Dingley, 63 11. St11ntoo, 1 Duer, 79; lilivcn "· Hud. to a third person for uses not justiﬁed Me. 503. See Browning 11. Hamilton, son R.R. R Co., 86 N. Y. 403. It is by the joint holding, the other co- 42 Ala. 484. a defense to the bailee if goods are tenant may maintain trover against 1 Grove ti. Wise, 88 Mich. See, taken from him on lc,1Xal proct'SS. the purchaser. Agnew o. Johnson, also, Strickland 11. Parker, 54 Me. 2a8. Bliven c. Huds•)ll R. R R Co., 35 1'7 Penn. St. 373. See Collins o. Ayres, It is a conversion of a joint owner's .Harb: 188, and 36 N. Y. 40:J; Wells"· 57 Ind. 239. iatert•st in a note if the other joint Thornton. 45 Burl>. 390; Vm1 \\"iukle “Nelson o. Iverson, 17 Ala. 216; owner takes it for collection and sur. "·Mail. etc., Co., 37 Barb. 122; Burton Burditto. Hunt, 25 Me. 419. See Nel- renders it to the maker for cancel. "·Wilkinson, 18 Vt. um. &e Stiles son v. Anderson, 1 B. & Ad. 450, Mor- ment. Winner "· Penniman, a5 ltid. "· Davis, 1 Black, 101. Compare Kiff ris u. Hall, 41 Ala. 510.

4 Sheridan 0. New Quay Co. 4 C. B. 168. If one tenant in common tukcs "· Old Colony, etc., Co. 117 Mass 591. 1 (N. s.) 619; Ogle 0. Atkinson, 5 Taunt. the joint property and disposes of it Where an actual conversion has

759; Thorne o. Tilbury, 3 H. & N. to a third person for uses not justified taken place, but the property still ex.

534; Biddle o. Bond, 6 Best & S. 225; by the joint holding, the other co. ists, and the wrong.doer offors to re.

Hnrdmnn 0. Willcock, 9 Bing. 382; tenant may maintain trover against turn it, the owner is under no obliga. King 1:. Richards, 6 Whart. 418; Bates the purchaser• . Agnew 11. J olinson, tion to take it back. Higgins "· Whit. 0. Stanton, 1 Duer, '79; Bliven v. Hud- 17 Pena. St. 878. See Collins 11. Ayres, ney, 24 Wend. 379; Otis t:i. Jones, 21 son R. R. R. Co., 36 N. Y. 403. It is 57 Ind. 239. Wend. 304; Hanmer "· Wilsey, 17

a defense to the bailee if goods are a Nelson 11. Iverson, 17 Ala. 216; 'Weml. 91: Brewster 1'. Silliman, 38 taken from him on legal process. Burditt ti. Hunt, 25 Me. 410. See Ncl- N. Y. 423. If he does take it back,

Bliven c. Hudson R. R. R. Co., 35

Barb.» 188, and 36 N. Y. 403; Wells o.

Thornton, 45 Barb. 390; Vim Winkle

0. Mail. etc., Co., 37 Barb. 122; Burton

o. Wilkinson, 18 Vt. 186. See Stiles

v. Da.vis,1 Black, 101. Compare Kiﬂ'

v. Old Colony. etc., Co. 117 Mass 591.

‘ Where an actual conversion has Original from

taken place, but the property still ex-

ists, and the wrong-doer offers to re- UNIVERSITYO FM ICHIGA N - -- z:::z::a1 turn it, the owner is under no obliga-

tion to lake it back. Higgins 0. Whit.-

ney, 24 W'cnd. 3'79; Otis 0. Jones, 21 Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

Wend. 394; Hanmer v. Wilscy, 17

Wend. 91; Brewster v. Silliman, 38

N. Y. 423. If he does take it back,

_ --~~ _- --Isl waonos fro PERSONAL PROPERTY. 457 hires a horse for one journey, and starts with him in an opposite WRONGS . TO PERSO_YAL PROPERTY. 457

direction on another, a conversion has then taken place, and the owner may bring suit. But here, if the bailee returns the horse hires a horse for one journey, and starts witl1 him in an opposite before the trial, as he may, the owner is not injured to the extent

of his value, since the horse has only temporarily been converted direction on another, a conversion has then taken place, and the to the wrong-doer’s use, and the injury is likely to be small, per- owner may bring suit. But here, if the bailee returns the horse haps nominal. But where the conversion is complete, the injury before the trial, as he may, the owner is not injured to the extent suffered, of course, is the value of what is converted.‘ Even this this does not bar his right ot‘ action, of his value, since the horse has on1y temporarily been converted but goes in mitigation of damages. to tho wrong-doer's use, and the injury is likely to be smalt, per

Gibbs 0. Chase, 10 Mass. 125; Brew-

ster 0. Silliman, 38 N. Y. 423. haps nominal. But where the com·ersion is complete, the injury

' Although the consideration of suffered, of course, is the valne of what is con verted. 1 Even this

damages more properly belongs to a work specially devoted to the reme- this does not bar his right of action, time of tbe conversion, and any ad dies for torts, it may not be inappro- but goes in mitigation of damages. vance thereon that may have taken priate here to say, that in respect to Gibbs "· Chase, 10 Mass. 125; Brew place within a reasonable time there actions of trover. the rule of dam- ster "· Silllman, 88 N. Y. 423. afler for replacing lt. Baker "· Drake. ages has always been more or less un- 1 settled. When the conversion was Although the considerution of M N. Y. 211; Mathews "· Coe. 40 N.

complete, it has been held in some damngcs more properly belongs to a Y. 57; Devlin "· Pike, 5 Daly. ~; 1 cases that the plaintitf should be en- work specially devoted to the reme Page"· Fowler, 31) Cal. 412. 8L·e Wey titled to the highest market price be- dies for torts, lt ruay not be inappro. mouth"· Chicago, etc., R R Co., 17 tween the time of conversion and the prlutc here to suy, that in respect to Wis. 567. But in most cas1•:1 where time of trial. Markham 0. Jaudon, actions of trover, the rule of dam the circumatances are not such as to 41 N. Y. 235; Burt o. Dutcher, 34 N. ages has al ways been more or less un warrant exemplary damages, a just Y. 403; Romaine 0. Van Allen, 26 N. set! led. When the conversion was indemnity will consist iu the value

Y. 309; Morgan o. Gregg, 46 Barb. complete, it baa been heM in some of the property at the time of the 183; Wilson 0. Mathews, 24 Barb. be 295. At least, that the jury might cases that the plsintlff should en con,·cri1ion, with interest thereon to

award this in their discretion. Green- titled to the highest market price be Uie time of trial. Greeley "· Stilson, ing o. Wilkinson, 1 C. & P. 625; Ew- tween the time of conversion and the 27 Mich. 158: Winchester"· Craig: 88 ing v. Blount, 20 Ala 694; Jenkins 0. time of trial. :Markham "· Jaudon, llich. 205; Ripley "· Davis. t:S llich. McConico, 26 Ala. 213. Especially 41 N. Y. 2'l5; Burt "· Dut<'her, 34 N. 75; Dalton "· Lt1udahn, 27 )I ich. li29; if the property was subject to consid- Y. 493; Romaine"· Van Allen, 26 N. Yater"· :Mullen, 24 Ind. 277: Keair.ey erable ﬂuctuations in value. Doug. Y. 300; }[organ "· Gregg, 46 Barb. "· Hite, 12 Ill. 99; Otter "· Wilhama, lass 0. Kraft, 9 Cal. 582; Hamer o. 183; Wilson "· :Mathews, 24 Barb. 21 Ill. 118; Turner "· Retter, li8 Ill. Hathaway, 33 Cal. 117. Qualified in 293. At leust, that the jury might 264; Jefferson o. Hale, 81 Ark, 2~; Barrante v. Gnrratt, 50 Cal. 112. But award this in their discretion. Green a more just rule obviously is that Ryburn "· Pryor, 14 Ark. :ro5; Hledge

which gives inst indemnity to the ing "· Wilkinson, 1 C. & 'P. 625; Ew "·Reid, 73 N. C. 440; Thomas r. Htern. party injured for the loss which is the ing"· Blount, 20 A.IL 694; Jenkins•· heimer, 2!) lid. 268; llerzherg "· natural, reasonable and proximate rc- llcConlco, 26 Ala. 218. Especially Adams, 39 Md. 300; Polk's Admr. "· sult of the wrongful act complained if Uie property was subject to consid. Allen, 19 llo. 467; Kennedy r. Whit.. of; and this, where the article con- erable fluctuations in value. Doug. well. 4 Pick. 466; Fowler "· Gil mun, verted was always in market, may, lass • · Kraft, 9 Cul. 562; Hamer "· 13 Met 267; Gn·enfteld B1mk "· perhaps, be the market value at the Hathaway, 88 Cal. 117. Qualified in Leavitt, 17 Pick. 1; Pierce "· Benja. time of the conversion, and any ad- Barrante "· Garratt, 50 Cal. 112. But min, 14 Pick. 356; 8:1rj.!<'Rnt "· vance thereon that may have taken a more jm1t rule obviously is that Franklin Ins. Co., 8 Pick. !JO; .John. place within a reasonable time there-

aﬂer for replacing it. Baker o. Drake, which gives tnst indemnity to the son "· Sumnn, 1 ~[ e t. 172; Barry "·

53 N. Y. 211; Mathews n. Coe, 49 N. party injured for the loss which ls the Bennett, 7 Met. 334; Hurd r Huhbell,

Y. 57; Devlin 0. Pike, 5 Daly. 85; naturul, reasonable nnd proximate re 26 Conn. 889; Cook 1'. Loom i~, 26

Page v. Fowler, 39 Cal. 412. Sec \Vey- sult of the wrongful act compl1lined Conn. 483 ; Hobiu!!on "· Hartricl~e. 18 mouth 0. Chicago, etc., R. R. Co., 17 of; and this, where the article con Fla. 501; Vaughan"· Webster, 5 llarr. Wis. 567. But in most cases where verted was al ways in market, may, 256; Lillard"· Whittaker,8 Hibb, 92; the circumstances are not such as to perhaps, be the market value at the Thrall "· Lathro1>, 30 Vt. 80'l; Hay- warrant exemplary damages, a just

indemnity will consist in the value

of the property at the time of the

conversion, with interest thereon to

the time of trial. Greeley 0. Stilson,

27 Mich. 153: Winchester 0. Craig;38 Mich. 205; Ripley e. Davis. 15 Mich. Original from '75; Dalton c. Laudahn,27 M it-h.529;

Yater 0. Mullen, 24 Ind. 277; Keaggy UNIVERSITY OF ICHIG N

0. Hite, 12 Ill. 09; Otter v. Williams,

21 Ill. 113; Turner 0. Rotter, 58 Ill. Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

264; Jetlerson n. Hale. B1 Ark, 236;

Rybnrn v. Pryor, 14 Ark.505; Sledge

0. Reid, '73 N. C. 440; Thomas v. Stern-

heimer, 29 Md. 268; llerzherg o.

Adams, 39 Md. 309; Polk's Admr. o.

Allen, 19 Mo. 467; Kennedy r. Whit-

well. 4 Pick. 466; Fowler o. Gilman,

13 Met. 267; Greenﬁeld Bank 1:.

Leavitt, 17 Piek.1; Pierce 0. Benja-

min, 14 Pick. 356; S:ll'j!('ttIii. u.

Franklin lns. Co., 8 Pick. U0; John-

son o.Snmner,1 Met. 172; Barry 0.

Bennett,7Met. 354; llurd r Hubbell,

26 Conn. B89; Cook 0. Loomis, 26

Conn. 483; Robinson o. Hartriclge, 13

Fla. 501 ; Vaughan v. Webster, 5 llarr.

256; Lillard v. Whittaker, 8 Bibb, 92;

Thrall o. Lathrop, 30 Vt. 807; Hay- 458 THE LAW or 'rou_'rs.' 458 THE LAW OF TO}\TS. statement does not fully cover the ground, for the value may

depend largely on the time the conversion is deemed to have taken place. If, for example, one has received property to be returned statement doea not fully cover the ground, ior the value may on demand, and declines to return it, the property is not changed depend largely on the time the conversion is deemed t.o have taken by the demand and refusal, but the owner may still 1'eplc\'_\' the

goods; and if in the meantime they have largely increased in place. If, for example, one has recei\·cd property to be returned value, it would seem that he should be entitled to that increase, on demand, and declines to return it, the property is not changed if he fails to recover the goods. The rule seems to be, however, by the demand and refusal, but the owner may still reple,·y the that if he treats the demand and refusal as _a conversion, his

injury is measured by the value at that time;' but he might, no goods; and if in the meantime they have largely increased in doubt, make a subsequent demand, and rely upon a failure to value, it would seem that he should be entitled to that increase, respond to that as his grievance.‘ if he tails to recover the goods. The rule seems to be, howtffer, Eﬂ‘ect of Judgment. It was decided in Adams v. Broug/zton ' that udgment in trover or trespass for the value of the property that if he treats the demand and refn1ml as .a <.'Om·craion, his vested the title in the defendant; and this decision has been tol- injury is measured by tho valne at that time;' bot he miKht, no lowed in this country to some extent.‘ But the present English

rule is, that it is not the judgment alone, but judgment and the doubt, make a subsequent demand, and rely upon a failure to satisfaction thereof, that passes the title to the defendant; ‘ and respond to that as his grievance.•

this may be said to be the accepted doctrine in_ this country at the present time.‘ The title by relation vests as of the time BdBot of Judgment. It was decided in .Adam& v. Broughton• when the conversion took place; but this relation is not eiiectual for all purposes; it could not render a third party a trespasser that judgment in trover or trespass for the value of the property den o. Bartlett, 35 Me. 203; Tenney 0. vested the title in the defendant; and this decision has been fol

State Bank, 20 Wis. 152; Carlyon 1;.

Lannan,4 Nev. 156; Neiler 1:. Kelley, lowed in this country to some extent.' But the present English

69 Penn. St. 403; Whitﬁeld 0. Whit- rule is, that it is not the judgment alone, but judgment and the ﬁeld. 40 Miss. 352; Newton, etc., Co. satisfaction thereof, that passes the title to the defendant;• and 0. White. 53 Geo. 895; Sturges n.

Keith, 57 Ill. 451. this may be said to be the accepted doctrine in. this conn try at

‘ Burk '0. Webb, 32 Mich. 173. See the present time.• The title by relation vests as of the time Third National Bank '0. Boyd,44 Md. when the conversion took place; but this relation is not effectual 4'7.

' If the property is largely in- for all purposes; it could not render a third party a trespasser

creased in value by the action of the

wrong-doer himself, as, for instance,

where he takes heavy articles a long den t1. Bartlett, 85 Me. 203; Tenney t1. See Barton Coal Co. ti. Cox, 89 Md. 1. 1 distance to market, it seems he should State Baok, 20 Wis. 162; Carlyon ti. Stra. 10i8; B. C. Andrews, 18. be charged only with the value at the Lannan,4 Nev. 156; Neiler t1. Kelley, 'Carlis'e "· Burley,S lle. 2W; Rog. time of the wrongful taking, and in- 60 Penn. St. 403; Whitfield •· Whit. erst'. Moore, Hice, (S. C.) 60; Bogan terest thereon, unless there were bad fteld, 40 Miss. 352; Newton, etc., Co. ti. Wilburn, 1 Speers, tiO; Floyd "· faith or circumstances of aggravation. t1. White, IS3 Geo. 895; Sturges e. Browne, 1 RiLwle, 121; :\hr:;h r. Pier, Winchester 0. Craig, 83 Mich. 205. Keitb, 67 Ill. 451. 4 Ruwle, 273; Fox " Northern Lil>t'r

See Burton Coal C0. 0. Cox, 39 Md. 1. J Burk 11. Webb, 32 Mich. 173. See tles, 3 Watts & B. 108; lforrick's Es. ' Stra. 1078: S. C. Andrews, 13. Third National Bank ti. Boyd, 44 Md. tate, 6 W. & S. 9; Curtis o. (~mat, 6 ‘ C:irlis‘e o. Burley,3 Me. 2.30; Rog. 11. ers r. Moore, Rice, (S. C.) 60: Bogan 47. Johns. 168; Fox Prickett, 34 N. J.

0. \\'ilburn, 1 Speers, 179; Floyd 0. • If the property is largely in 18.

Browne, 1 Rnwle, 121 ; Marsh r. Pier, creased in value by the action of the • Brlnsmead fl, llarrison, L. R 6 C.

4Rawle. 2'73; Fox v Northern Liber- wrong.doer himself, aa, for instance, P. 584. ties, 3 Watts & S. 103; Merrick's Es- where he takes heavy articles a long 1 Lovejoy fl. Jlllurrny, 3 Wall. 1; El tate, 5 W. & S. 9; Curtis u. Groat, 6 distance to market, it seems he should liott"· H11y1lcn, 104 )lnss. 180; L'nited Johns. 168; Fox u. Prickett, 34 N. J. be charged only with the value at the Society o. U nJcrwood, 11 liush, 263; 13. time of the wrongful taking, and in. S. C. 21 Am. Unp. 214; Smith o. limitb,

‘ Brinsmead 0. llarrison, L. R. 6 C. terest thereon, unless there were bad 51 N. H. 571; Hyde fl. Noble, 18 N. P. 534. faith or circumstances of aggravation. H. 494; Hell fl. P.:rrr, 43 lowll, SGS; ‘ Lovejoy 0. Murray, 3 W'ull. 1; El.

liott 1;. Hayden, 104 Muss. 180; United Winchester v. Craig, 88 Mich. 205. Bacun 1>. Kimmell, 14: Mich. 20!.

Society v. Underwood, 11 Bush, 265;

S. C. 21Ain.R"p. 214; Smith n.Sn1ith,

51 N. H. 571; Hyde 1:. Noble. I3 N.

H. 494; Bell v. Perry, 43 lowa, 868;

Bacon 0. Kimmell, 14 Mich. 201.

I Original from Dig tiz UNIVERSITY OF ICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google ::::::::.._.______·- ~-- a crowv the c:oart will uadcr omtllin c:irn-. pcnnit '119 dclendant aftie1o suit broucht. to brin1 the property · c~ coun "llr tbc dclielldant wida tbc ;'.,':.!S: tbat · time ... •..-.n wiU dim order a atar ol · ~or permit die~ to proceed with the action at the riK of liaYia1 die costs 6aally a~udp! ~ hia uloa be be able ID lbow &hat he bu been SDicia1Jy damapd by tbe ~f CDDftnioo al die ~ br lt.c "dcf'cad.ut ill addition ID n \Y0\1.;\', the court will under certain circumstances, permit ilnalae at the time «us rewna. Or die e11un will in a ON.AL PROPERTY 459 proper - ak ~ "'*' a Cllads cl cbe pNpenJ, re- .. thedcfcndant after suit brought, to bring the property ~ "fWdict to~ clamaaa. l clsiina into court for ihc defendant with the costs up_to that ~11r,.. \Yr-- .p. •• ..,;...: a""· fforanything done by him mter- time and the court will then order a slay of proceedings or 1 rmit the plaintiﬁ to proceed with the action at the risk ot meatatJe aae conversion and the judgment; and if, after corwer lifts»; the costs ﬁnally adjudged against him unless he be sion, the plaintiff has sold his interest in tho property, the pur able to show that he has been iipeciall damaged by the chaser will not be affected by the suit, and the plaintiff will be conversion of the property by the dcfciuilzint in addition to iis value at the time of its return. Or the court will in a • entitled to re<,'Over nominal damages only, since, by the sale, he proper case after verdict, upon a tender of the property, re- has disabled himself from passing title to the detendant.• .And (wv-the verdict to nomina damages. in neither trover nor trespass will the title be chan;.,rt•d if the w/1% \""" *--H?--1 av-v.

ONAL PROPERTY 459 re<..'Overy was only for an injury to the property, or t'vr a tempo ‘7for anything done by him inter- rary use, and not for the value. inemate the conversion and the jiidgineiit;' and if, after conver-

sion, the plaintiff has sold his interest in the property, the pur- ~ustifloation under Prooeaa. 'Vhen an interference with the chaser will not be affected by the suit, and the plaintiff will be entitled to recover nominal damages only, since, by the sale, he property of another is justified under legal proccedin~s, it is has disabled himself from passing title to the defendant.’ And important to know the position the party justi(ving occupies in in neither trover nor trespass will the title be changed if the

recovery was only for an injury to the property, or for a tempo- respect to them. In some J>articulars the roles of protection are rary use, and not for the value. somewhat different as rel'pects the Neveral easE.'s of ma~strate, iustiﬂcation under Process. \Vhen an interference with the ministerial officer and pa1·ty, or complainant, and they will there property of another is justified under legal proceedings, it is

important to know the position the party jiistifying occupies in fore be given separately.

respect to them. In some particulars the rules of protection are somewhat different as respects the several eases of magistrate, The 08loer. For the purpose of interfering with one's pos ministerial oﬁicer and party, or complainant, and they will there- session of chattels, the ministerial officer is always snppohC

The Omcer. For the purpose of interfering with one’s pos- be armed with legal process~ which he can exhibit as his authority. session of chattels, the ministerial otiieer is always supposed to There may be a few special cases in which this would not he be armed with legal process, which he can exhibit us his authority. necessary to his justification. Such a ease would be that of a There may be a few special eases in which this would not he necessary to his justiﬁcation. Such a case would be that of a thief caught flagran~ delit:t(), with the stolen property in his thief caught jlag/‘ante delicto, with the stolen property in his possession. No doubt the offic..oer might take the thief without possession. No doubt the otlieer might take the thief without warrant, and ho might also take the stolen property, and warrant, and he might also take the stolen property, and retain retain it for identiﬁcation and evidence of ownership. So, in making it for identification and evidem.-c of ownership. So, in making arrest for a supposed felony, the otiicer might take from the per- arrest for a supposed felony, the officer might take from the per son arrested whatever was supposed to have been the instrument

in committing the crinie, or whatever would probably be impor- son arrested whatever was snppoS(,'0mmittin~ the crime, or whatever would probal>ly be impor proper statute or municipal by-law, implements of gaining found tant to be used in evidence on the trial. So, doubtlm;s, under in actual use in violation of law, might be seized. These cases suggest others, but they cannot be numerous. In general, the proper statute or municipal by-law, implemcuta of f.-1'!\tning found oﬁicer must seek protection behind process. in actnal use in violation of law, might be 1u~ized. Thege cases

The process that shall protect an oliicer must, to use the ciis- so~gest others, but they cannot be numerous. In g.meral, tho toinary legal exprfssion, be ﬂair on its face. By this is not meant that it shall appear to be perfectly regular, and in all officer must seek prokction behind prorcss. ’ Bacon o. Kiinnicl, 14 Mich. 201. " Brady, 0. Whitney, 24 Mich. 154. The process that shall protect an officer mnst, to Dile the cus

See ante, 95, 96. f.. tomary legal exp1°'E"sion, be fair 01• its face. l~y this is not meant t,1at it shall appear to be perfoctly regular, and in all

1 Bacon e. Klmmel, i• M.ich. SOl. • Bcatly, •· Whitney, 24 M.icb. lM. 8ee ante, 93, 98.

respects in accord with proper practice, and after the most 460 THE L.A. W OF TORTS.

approved form; but what is intended is, that it shall apparently be process lawfully issued, and such as the oﬁieer might la\vt'ully respects in accord with proper practice, and after the most serve. More precisely, that process may be said to be fair on its approved form; but what is intended is, that it shall apparently · thee which proceeds from a court, magistrate, or body having

authority of law to issue process of that nature, and which is be process lawfnUy issued, and such as the officer might ln.wfully legal in form, and on its face contains nothing to notify or fairly serve. More precisely, that process may be said to be fair on its apprise the oiﬁcer that it is issued without authority.‘ When fa<.-e which proceeds from a court, magistrate, or body hK>ing such appears to be the process, the oﬂicer is protected in making

service, and he is not concerned with any illegalities that may authority of law to issue process of that nature, and which is

106 Mass. 296; Le Roy 0. EustSag1- legal in form, and on its face contains nothing to noti(y or fairly _ aw Railroad Co., 18 Mich. 233; Bird apprise the officer that it is issued without authority.' "'hen °d‘-n- 9.

'\\An& _ \ , such appears to be the proc.oess, the officer is prot<'cted in making exist back of it.’ service, and be is not concerned with any illegalities that may The word process is made use of in this rule in a very com- exist back ot' it.• ‘ Cooley on Taxation, 559. 562.

‘ Parsons 0. Loyd, 3 Wils. 341; Ives The word process is made use of in this rule in a very com-

o. Lucas, 1 C. & P. '7; Erskine o. Holin- bach, 14 Wall. 613; Lott 0. Hubbard, 1 Cooley on Taxation, MD. 562. "· Perkins. 83 .Mich. 28; Wood "· 44 Ala. 593; Grumon v. Raymond, 1 •Parsons"· Loyd, 3 Wils. 341; Ives Thomas, 37 Mich. ; Turner e. Conn. 40; Thames Manufg. Co. o. ti. Lucas, 1 C. & P. 7; Erskine"· llohu Franklin, 2:) l\Io. 28.); Glia.sgow o. Lathrop, '1 Conn. 550; Watson 0. bach, 14 Wall. 613; Lott "· Hubbard, Rowse, 48 Mo. 4W; !:'l Louis liuild

Watson, 9 Conn. 140; Neth v. Crofut, 44 Ala. 598; Grum on fl, Raymond, 1 ing, etc., Assn. " Li~htner. 47 ,ro. 80 Conn. 580; Brother o. Cannon, 2 Conn. 40; Thames 1tlanufg. Co. fl. 303; State 1'. Dulle, 48 l\lo. 282: Wal.

Ill. 200; Shaw 0. Dennis, 10 Ill. 405; Lathrop, 7 Conn. 550; Watson fl. den fl. Dudley, 49 Mo. 419; Blanch Allen 0. Scott, 13 lll. 80; Hill 0. Watson, 9 Conn. 140; Neth"· Crofut, ard o. Goss, 2 N. H. 491; Henry"· Figley, 25 Ill. 156; Gott v. Mitchell,

7 Blackf. 2'70; Noland 1:. Busby, 28 80 Conn. 580; Brother "· Cnnnon, 2 S:1rge11nt, 13 N . H. 821; State"· Weed, D. Ind. 154; Brainard 0. Head, 15 La. Ill. 200; Shaw o. Dennis, 10 II I. 405; 21 N. H. 262; Rice Wad~wortb, 27

Ann. 489; Ford 0. Clouszh, 8 Me. .A.lien o. Scott, 13 Ill. 80; Hill e. N. H. 104; Keniston '" Little, 30 N

334; Kellar 0. Savage, 20 Me. 199; Figley, 25 Ill. 156; Gott 1'. Mitchell, H. 318; Kelley ri. Noyes. 4.'3 N. H. 209;

Trelnont o. Clark, 33 Me. 482; State 7 Blackf. 2i0; Noland 1'. Busby, 28 Heach "·Furman, 9 Johns. 228; WILl' 0. McNally,34 Me. 210; Caldwell v. Ind. 154; :Brainard "· Head, 15 La. ner "· Shed, 10 Johns. 1;}8; Savacool Hawkins, 40 Me. 526; Jutlkins 0. Ann. 489; Ford "· Clouirh, 8 l\le. "· Boughton, 5 Wend. 171; Wilcox"· Reed, 48 Me. 386; Bethel o. Mason, 884; Kellar "· Savage, 20 Me. 109; 8mith, 5 Wend. 231; McUuinty ti. Her 55 Me. 501; Nowell 0. Tripp, 61 Me. Tremont"· Clark, 33 lie. 482; State rick, 5 Wend. 2·i0; Alcxandeu. Hoyt,

426; Seekins o. Goodale, 61 Me. fl. llcNally, 84 ~le. 210; Culdwcll "· 7 Wend. 89; RPynolds fl. Moore, 9

400; Colman o. Anderson, 10 Mass. Hawkins, 40 llc. 526; Judkins "· Wend. 85, 36; Coon fl. Congdon, 12 105; Holden 0. Eaton, 8 Pick. 436; Reed, 48 !le. 386; .licthel "· Musno, Wend. 406, 4!>9; Webbe~ "· Gay, 24 Sprague 12. Bailey, 19 Pick. 436; 55 Me. 501; Nowell 11. Tripp, 61 Me. Upton 1: Holden,5 Met. 360; Aldrich Wcnd.485; People"· Warren, 5 Hill, o. o. Aldrich, 8 Met. 102; Lincoln v. 426; Seekins Goodale, 61 Me. 440; Cornell fl. Barnes, 7 Hill, 35; Ben

Worcester, 8 Cush. 55; Hayes 0. 400; Colman "· Anderson, 10 M88s. nett c. Burch, 1 Denio, 141; Abbott"·

Drake, 6 Gray, 387; Howard o. Proc- 100; Holden 11. Eaton, 8 Pick. 486; Yost, 2 Denio, 86; Dunl!t.p t:. Hunt. tor, 7 Gray, 128; Williamston o. Wil- Sprague o. Bailey, 19 Pick. 436; ing, 2 Dmio, 643; Patchin v. Hitter, lis, 15 Gray, 427 ; Cheever 1:. Merritt, Upton"· Holden.. 5 Met. 360; Aldrich 27 Harb. 34; Sheldon"· Van liu~k irk, 5 Allen, 563; Underwood 0. Robinson, e. Aldrich, 8 Met. 102; Lincoln "· 2 N. Y. 473; Chcgaray "·Jenkins, 5 Ow-/v---~\\+ Worcester, 8 Cush. 55; Hayes "· N. Y. 876; Statev. Lutz, 6:> N. C 503; o. Perkins. 83 Mich. 28; Wood v. Drake, 6 Gray, 887; Howard "· :Pl'Oc Gore"· .Martin, 66 N. C. 371; Loomis Thomas, 37 Mich. ; Turner 0. tor, 7 Gr11y, 128; Williamston "· Wil. "·Spencer, 1 Ohio, (N. s.) 153; :Moore

Franklin, 29 Mo. 285; Glasgow u. lie, 15 Gray, 427; Cheever e. Merritt, "· Alleghany City, 18 Penn. St s.;; Rowse, 43 Mo. 479; St. Louis Build- 6 A.Ben, 563; Underwood fl. Robinson, Billings"· Russell, 23 Penn. St. 189; ing, etc., Assn. o Lightner, 47 Mo. 106 Mass. 296; Le Roy "· East Sagi- 393; State v. Dulle, 48 Mo. 282: Wal- Burton "· Fulton, 49 Penn. St. 151; ---..faw Railroad 18 Mich. 233; Bil'd den v. Dudley, 49 Mo. 419; Blanch- Co., Cunningham e. Mitchell, 67 Penn. 8t. ard 0. Goss, 2 N. H. 491; llenry 0. ~.,.~,~ Surgeant, 13 N. H. 321; State v. Weed, '\~. SL~'• 21 N. H. 262; Rice v. \Vadsworth, 27

N. H. 104; Kenistnn 0. Little. 30 N

H. 318; Kelley 0. Noyes. 43 N. H. 209;

Beach o. Furmau, 9 Johns. 228; \Vu.r- ner 0. Shed, 10 Johns. 138; Savacool Original from

0. Boughton, 5 Wend. 1'71; Wilcox v.

Smith, 5 Wend. 231; McGuinty v. Her- UNIVERSITYO FM ICHIGA N

rick,5 Wend.2-10; Alexander c. Hoyt,

7 Wend. 89; Reynolds 0. Moore, 9

Wend. 35, 36; Coon 0. Congdon, 12 Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

Wend. 496, 499; Webber o. Gay, 24

Wend. 485; People u. Warren, 5 Hill,

440; Cornello. Bax-nes,'7 IIill,35; Ben.

nett 1:. Burch, 1 Denio, 141; Abbott o.

Yost, 2 Denio, 86; Dunlap v. Hunt-

ing, 2 Denio, 643; Patchin 2:. Ritter,

27 Barb. 34; Sheldon 0. Van Buskirk,

2 N. Y. 473; Chcgaray v. Jenkins, 5

N. Y. 3'76; State v. Lutz, 65 N. C. 503;

Gore v. Martin, 66 N. C. 3'71; Loomis

0. Spencer, 1 Ohio, (N. s.) 153; Moore

0. Alleghany City, 18 Penn. St. 55;

Billings 0. Russell, 23 Penn. St. 189;

Burton o. Fulton, 49 Penn. St. 151;

Cunningham v. Mitchell, 67 Penn. SL WRONGS T0 PERSONAL PROPERTY. 461

prehensive sense, and will include any writ, warrant, order, or WRONGS TO PERSONAL PROPERTY. 461

other authority which purports to empower a ministerial oﬁicer to arrest the person, or to seize or enter upon the property of an prehent1ive sense, and will inclndo any writ, w"rrant, order, or individual, or to do any act in respect to such person or property other authority which purports to empower a ministerial officer which, if not justiﬁed, would constitute a trespass.‘ Thus, a eapias ad respondeml um, or any warrant of arrest, is process; ' to arrest the person, or to seize or enter upon the property of an so is a writ of possession;’ so is any execution which authorizes individual, or to do any act in respect to such person or property a levy upon property;‘ and so is any authority which is issued which, if not jnatifie

But the writ being found to be a lawful one, it next becomes t necessary to the oﬁicer’s protection that he proceed upon it a levy upon property; and so is any authority which is issued according as the law directs. He cannot demand and secure the to a collector of taxes and which purports to empower him to protection of the law while disregarding the commands laid collect the tax by distre88 of goods.• These are only illustrations upon him for the protection of the rights of others. By this is

not meant that he shall obey to the letter every direction of the of a class too numerous to be specified in detail. law, whether important or unimportant, and whether or not Dut the writ being found to be a lawful one, it next becomes beneﬁcial to any of the parties concerned. Many directions are necessary to the officer's protection that lie proceed upon it given in legal proceedings which do not have specially in view the interests of parties; and where these fail of observance it is according as the law directs. He cannot demand and secure the generally said of them that they are merely directory, and that a protection of the law while disregarding the commands laid

78; State e. Jervey, 4 Strob. 304; Head, 15 La Ann. 489; State 0. Mc-

l\icLean r. Cook, 23 Wis. 364; Orr 0. upon him for the protection of the rights of others. By this is

Box, 23 Minn. 485. not meant that be shall ohe.v to the letter every direction of the In Vermont an exception to this law, whether important or nnimportant, and whether or not rule seems to be made in tax cases, it

being held that the tax bill and war- beneficial to any of the parties concenu..ad. Many directions are rant in due iorm do not constitute given in legal proceedings which do not have specially in ,·iew

protection to the collector without a the interests of parties; and where these fail o~ observance it is showing that the antecedent proceedings were legal. Hathaway 0. Good- ~nerally said of' them that they are merely directory, and that a

rich. 5 Vt. 65; Collamer c. Drury, 16

Vt. 574; Downing 0. Roberts, 21 Vt.

441; Spear v. Tilson, 24 Vt. 420; Shaw 78; State e. ;Jervey. ' St.rob. 80f; Head, 15 L&. Ann. 48!>: Stft~ r. Hc v. Peckett. 25 Vt. 423; Whcelock 0. Mc~ "·Cook. 23 Wis. 86'; Orr t'. Nally, 84 'Meo. 210; State •· Wel•d, 21

Archer, 26 Vt. BSO. Box, 22 )lion. 483. N. H. 2G2; Warner e. Shed, 10 Johns.

' See McGuinly 2:. fienrich, 5 Wend. In Vermont an exception to this 138; Cntlcrwood e. Robinson, 106

240; Loomis v. Spencer, 1 Ohio, (N. s.) role M.'emi> to be made in tax case .., it llBSS. 2U6. 153. being held that the tax bill and war. 1 Lombard e. Atwater, 48 Iowa, 599. ‘ Parsons 0. Lloyd. 3 Wils. 341; rant in due form do not constitute Or a writ of rlghl Colman "· An Neth e. Crofut, 80 Conn. 580: Brother protection to the collector without a der-on, 10 Ma."s. 105. 0. Cannon, 2 Ill. 200; Brainard 0. showing that the antecedent proceed. ' Thames Mnnof. Co. e. Lathrop, '1 Nully, 34 Me. 210; State 1:. Weed, 21 Conn. IS.'>0; lvea r. Lucas, 1 C. & P. 7; N. H. 262; Warner 0. Shed, 10 Johns. lngs were l('ga). Hath11way "· Good.

138; Underwood 0. Robinson, 106 rich. 5 VL 65: Collamer "· Drury, 18 Bill "· Figley, 25 Ill. tM; Gott e.

Mass. 296. Vt. IS74; Downing •· Roberts, 21 Vt Mitchell, '7 Blackf. 270; Watkins e.

' Lombard 0. Atwater, 48 Iowa, 599. 4U: Spear"· Tilson, 24 VL 420; Shaw WRllace, 19 )lich. 57.

Or a writ of right. Colman v. An- "· PeckeU. 23 Ve.. 423; Wheelock •· • Ert.k.lnc e. llohnbach, 1~ Wlllt. der—on, 10 Mama. 105. Archer, 26 Ve.. 880. 618: Shaw "· Dennis, 10 Ill. 4().': No. ‘ Thames Manuf. C0. 0. Lnthrop, 7 •Bee llcGulnty "· Henrich, IS Wend. Jand "· Bo11by, 28 Ind. t~t: Kelley o. Conn. 550; Ives v. Lucas, 1 C. & P. 7; t40; Loomis •· Spencer, 1 Ohio, (R. a.) Bavagt-, 20 Xe. 109; CaJdwt!IJ l'. Haw. Hill u. Figlcy. 25 lll. 156; Gott v. 168. kins. 40 :Me. l'i26: Nowell r. Tripp,

Mitchell, '7 Blackf. 270; Watkins v. 1 Panons •· Lloyd. 8 Wlls. 341; 6 l Me. a6; Cla&rk e. Axford, 5 Mich. Wallace. 10 Mich. 57. N etb e. Crofut, 80 Conn. 580 : Brother 182. ‘Erskine 0. Ilohnbuch, 14 Willi.

613; Shaw u. Dennis, 10 lll.-105; No- e. Cannon, I Ill. SOO; Brainard •·

land v. Busby. 28 Ind. 154; Kelley 1:.

Savage, 20 Me. 199; Caldwell 0. Haw.

kins. 40 Me. 526; Nowell r. Tripp,

61 Me. 426; Clark o. Axfurd, 5 Mich.

182. Original from Dig tiz UNIVERSITY OF MICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 462 THE LAW or TORTS.

failure to comply with them does not constitute an invalidity, 462 THE LAW OF TORTS.

but an irregularity only. But provisions which are made for the very purpose of protecting individual interests cannot be failure to comply with them does not constitute an invalidity, disregarded with impunity. A suitable illustration is found in but an irregularity only. But provisions which are made for the case of one distraining cattle damagcfeasant, and proceeding to impound them before having his damages appraised. the very purpose of protecting indi\"idnal interests cannot be

“There the appraisement is made by the statute a necessary pre- disregarded with impunity. A snitable illustration is fonnd in liminary to the impounding, and has in view a beneﬁt to the the case of one distraining cattle da1n11go easant, and prol-eed owner of the beast, that he may know precisely what his liability f is, the failure to obtain it will render the distrainer a trespasser ing to impound them before having his damages appraised. ab1In2'ti0.‘ So, as notice oi the time and place of sale of chat- Where the appraisement is made by the statute a necessary pre tels on execution is of high importance to the parties, an oﬁicer

who fails to give it when the statute requires him to do so, and, liminary to the impounding, and has in view a benefit to the nevertheless, proceeds to a sale, becomes trespasser ab initio, for owner of the beast, that he may know precisely what his liability the law will impute to him the indulgence of a purpose to sell is, the failure to obtain it will render the distrainer a trespas~r thus wrongfully at the time he made the levy.’ So the oﬁicer is 1 liable in like manner if he sells on his process more property ah im'ti1J. So, as notice of the time and place of sale of chat than is necessary to satisfy the demand;' or if he proceeds to tels on execution is of high importance to the parties, an officer sell before the time when under the statute he is at liberty to do who fails to give it when the statute requires him to do so, and, so; ‘ or if he makes a levy on household goods by handling them in a rough and improper manner, and then carries them away nevertheless, proc.-eeds to a sale, becomes trespasser ab initio, for exposed to a severe rain; " or if, having levied on the interest of the law will impute to him the indulgence of a purpose to sell one tenant in common, he proceeds to sell the whole title.“ or in

any manner misuses or misappropriates the property attached thus wrongfully at the time he made the levy.' So the officer is by him.’ liable in like manner if he sells on his proc.-ess more property For a mere non-feasance an oﬁicer does not become a trespasser than is necessary to satisfy the demand; • or if he proceeds to

' Pratt 0. Petrie, 2Johns. 191; Hop. Ash 0. Dnwnay, 8 Exch. 237; Play

kins 0. Hopkins, 10 Johns. 369; Sack- sell before the time when under the statute he is at liberty to do rider 0. McDonald, 10 Johns. 252; eo; • or if he makes a levy on household goods by handling them Merritt v. O'Neil, 13 Johns. 477; in a rough and improper manner, and then c.-arries them away Smith o. Gates, 21 Pick. 55.

‘Blake v. Johnson, 1 N. H. 91; exposed to a severe rain;• or if, having levied on the interest of

Purrington v. Loring, 7 Muss. 388. one tenant in common, he proceeds to sell tho whole title.• or in “Williamson v. Dow, 32 Me. 559. any manner misuses or misappropriates tho property attached See Ross v. P_hilbrick, 39 Me. 29. 7 ‘Wallis 0. Truesdell, 6 Pick. 455 by him. See Smith o. Gates, 21 Pick. 55; .For a mere non-feasance an officer does not become a trespasser

Knight v. Herrin, 48 Me. 533.

° Snydacker 1;. lirosse, 51 lll. 357.

° Melville v. Brown, 15 Mass. 81. t Prntt e. Petrie, 2 J obns. 191; Hop. Ash e. DawnRy, 8 Exch. 237; Play l Brackett '0. Vining, 49 Me. 356. kins "· Hopkins, 10 Johns. 369: Sack fair "· Mu-;;rnve, 1' M. & W. 239; See Sawyer o. Wilson, 61 Me. 529; rider "· :McDonald, 10 Johns. 252; Attach"· llramwell, 3 Best & S. 520, fair 0. Mus;rove, 14 M. & W. 239; Merritt "· O'Neil, 18 J ohos. 477; and cases cited. Attach v. I3raiu\\'ell, 3 Best & S. 520, Smith "·Gates, 21 Pick. !iii. To render one a trespUSE'r ab initl'o and cases cited. 'Blake "· Johnson, 1 N. H. 91; the facts should warrant the conclu. To render one :\ trespasser ab irulfo thRt the facts should warrunt the conclu- Purrington "· Loring, 7 Mnss. 388. sion the officer intended from the

sion that the oﬁlcer intended from the a Williamson -o. Dow, 32 Me. 559. ftrst to abuse his lawful authority.

ﬁrst to abuse his lawful authority. See Ross "· Philbrick. 39 Me. 29. Grlel "· Hunter, 40 Ala. 5'2. citing

Griel 0. Hunter, 40 Ala. 542, citing •Wallis "· ·Truesdell, 6 Pick. 4.'>5 Taylor ti. Jones, 42 N. II. 25. But 11.ny Taylor v. Jones, 42 N. H. 25. But any See Smith "· Gates, 21 Pick. 55; obviously unncccss:,ry and oprre~<1ive obviously unnecessary and oppressive Knight o. Herrin, 48 Me. 533. action may render the officer liable io action may render the olllcer liable in • Snydacker "'· lirosse, 51 Ill. :l57. cnse, us where a collect 1r of taxes case, as where a collect ir of taxes • Melville "· Brown, 15 Mass. 81. makes distress which Is greatly and makes distress which is greatly and ' Brackett "· Vining, 49 l\le. 356. obvinnsly excessive. Jewell 1'. Swain, obviously excessive. Jewell o. Swain, See Sawyer "· Wilson, 61 Me. 529; 67 N. H. 506. 57 N. H. 506.

execution by him;' or to proceed to a sale as in duty bound to do;’ or to restore property attached after the debt has been ~ initio. As where he fails to keep safely property taken in satisﬁed.’ But in each of these cases he will be liable on the special case; but not in trespass, because in none of his conduct execution by him;• or to proceed to a sale as in duty bound to has there been any wrongful force.‘ do;• or to restore property attached after the dcht hns been Extent of the Protection. The protection the ofiicer receives satisfied.• Bot in each of these cases he will be liable on the from the apparent validity of the process is personal to the ollicer and those called in by him to assist in the service;’ that is to special case; bot not in trespass, because in none of hie conduct say, it protects them against being made liable as trespa.-sers in has there been any wrongful force.• obeying its command. But if the officer has taken property

under it, and the fact that he acquired a special property in the goods by the seizure comes in question; it is not suﬁit-ient for B:s:tent ot the Protection. The protection the officer rec<>ivee him to show merely an apparently valid writ, but he must go from the apparent validity of the process is personal to the oflicer further and show that the writ had lawful authority for its issue.

Thus, if the writ was an execution, it must appear that there and those called in by him to assist in the service;~ that is to was a valid judgment; and if an attachment, then that the say, it protects them against being made liable as tre~pat"sere in proper legal showing was made before its issue, for until this

appears, the sheriﬁ‘ has only a personal protection and no special obeying ita command. Bnt if the officer has taken property property.‘ Such is the case where the oflicer, for any reason, under it, and the fact t11at he acquired a special property in the ﬁnds himself under the necessity of bringing replevin for the goods by the seizure comes in question; it is not snflit·ient for goods,’ or where he is sued for taking them by a third person

who claims them by assignment from the defendant in the pro- him to show merely an apparently valid writ, but he must 1-.ro cess, and whose title would consequently be valid as against any further and show that the writ had lawful authority for its i1'1me. levy that could not be supported by valid anterior proceedings." Thoe, if the writ was an execution, it mni;t appear that there And here it may be well to say, what it may be nece.~"s-ary to repeat hereafter, that mere irregularities in either the writ or was a valid judgment; and if an attachment, then tlmt the what precedes it are not fatal defects. proper legal showing was made before its issue, for until this

‘Waterbury v. Lockwood, 4 Day, per~nal 257; Stoughton v. Mott, 25 Vt. 668. appears. the sheriff has only a protection imd no special 4 right to do the ﬁrst act. Gates v. property. Such is the case where the oflkoer, for any reason, Lounsbury, 20 Johns. 427. :finds himself under the necessity of bringing rcplevin for tho

- * Bell ‘D. North, 4 Lit. (Ky.) 133.

' ‘Gardner e. Campbell, 15 Johns. goods,' or where he is sued for taking them by a third pt>raon

401. See Baker 0. Fales, 16 Mass. who claims them by asl'li~lment from the defondiult in the pro

147, 153; Hale c. Clark, 19 Wend. cess, and whose title would <.'Qnseqnently be \·alid as a~ainst any 498: Stoughton v. Mott, 25 Vt. 608.

‘ Where an act is lawfully done, it levy that could not be supported by valid anterior pro<.'t.>cdin~s." cannot be made unlawful ab initio And here it may be well to say, what it may be nece~t'Bry to unless by some positive act incom- irreg-nl~rities patible with thc exercise of the legal repeat hereafter, that mere in either the writ or

‘ That whoever assists the oﬁlcer at what precedes it are not tatal dct"t!cts.

his request is protected as he is. See

Payne v. Green, 18 Miss. 507; Kill- 1 patrick 1: Frost, 2 Grant, 168. Waterbury .. Lockwood, 4 Day, right to do the ftrst act. Ontts e.

‘ Earl c. Camp, 16 Wend. 562. ~; Stoughton •· Mott, 2:i Vt. 668. Lounsbury, 20 Johns. 427.

" Spafford r. Beach. 2 Doug. (.\{ich.) ' ' Bell 11. North, 4 LiL (Ky.) 188. 'Th11t whoever as!li!1ts the officer at 199; Leroy v. East Saginaw, 18 Mich. ' 1 Gardner "· Campbell, 16 Jobnl'. his request Is prott>ctcd as h<' Is. See 233. 401. See &ker e. Falt'S, 18 Mas.". Payne e. Grttn, 18 Ml111. lJ07; KiU " Parker v. Walrod, 16 Wend. 514, 147, 1:>3; Hale "· Clark, 19 Wend. patrick r Fro11t, 2 Grant. 1118.

517, and cases cited. 498: Stoughton e. )Iott, ~ Vt. 668. ' Earl r. Camp, 16 Wend. lro2. • Where an act Is lawfuUy done, ii 1 Spafford r. Beach. 2 Doug. (Mich.} cannot be made unlawful ab initio 199; Leroy e. East Saginaw, 18 Mich. unless by some positive act incom 233. patible with the exerciae of the legal • Parker tt. Walrod, 16 Wend. 514, IU7, and cases cited.

What Process is not Fair on its Face. Some old cases made 464 THE LAW OF TORTS.

a distinction between process issuing from courts of general jurisdiction and that issued by other and inferior tribunals, and What Prooees i8 not Fair on it.a Face. Some old C&Bes made required an oﬁicer in the last case to take notice of whatever a distinction between process issuing from courts of general might appear, or not appear, in all the proceedings on which the

right to issue the process might depend. But since the thorough jurisdiction and that issued by other and inferior tribunals, and examination the whole subject received in Savacool v. Boughton,‘ required an officer in the last C&B8 to take notice of whatever it has been generally c0nceded_that the distinction is unwar- might appear, or not appear, in all the proceedings on which the ranted, so far as it concerns the personal protection of the oﬁicer.

It is not unimportant, however, as it may bear upon the form right to issue the process might depend. But since the tborongh of the process itself, for recitals may be suﬁicient in one case ·examination the whole subject receh•ed in Savacool v. Boughton,' and not in another. When a court of general jurisdiction it has been generally conceded .that the distinction is unwar assumes authority to act there is a presumption of law that the authority exists, and the oﬁicer need not inquire further; but ranted, so far as it concerns the personal protection of the officer. the inferior court must not only have authority in fact, but upon It is not unimportant, however, a.s it may bear upon the form the face of its records and of its process enough should appear of the process itself~ for recitals may be sufficient in one case to show it. This is a general rule.

The following are illustrative instances of process not fair on and not in another. When a court of general jurisdiction its face: A warrant of arrest issued by a justice in a case of assumes authority to act there is a presumption of law that the which its recitals showed he had no jurisdiction :, ’ a writ of /zabeas

corpus issued by and returnable before an oﬁicer not by law authority exists, .and the officer need not inquire further; but having authority over that writ; “ a tax warrant the veriﬁcation the inferior conrt must not only have anthority in fact, but upon to which was made prematurely;‘ a warrant for the collection the face of its records and of its process enough should appear of a personal tax where one on real estate only could he 1evied;‘

an order made ‘by a commissioner in bankruptcy to detain a to show it. This is a general mle. debtor until he should pay certain costs. the law giving him no The following are illustrative instances of process not fair on authorityto make such an order;’ a conviction which showed its face: A warrant of Arrest issued by a justice in a ea..~ of on its _face that the party had been convicted on default in

responding to a summons returnable less than ten days from which its recitals showed he had no jurisdiction;• a writ of habe.a.& date, the statute requiring ten days “at least”; ' process of con- corp'U8 issued by and returnable before an officer not by law tempt issued by a judge of a court when only the court as a having authority over that writ;• a tax warrant the verification body had authority to issue it; ° process issued under an uncon-

‘ 5 Wend. 1'70. Van Renssclaer 1:. Witbeck, '7 N. Y. to which was made prematurely;• a warrant for the collection

’ Shcrgold v. Holloway. Stra. 1002; 517; Nat. Bunk of Chemung 1:. El- of a personal tax where one on real eE

Sec Chalkcr 0. Ives, 55 Penn. St. 81; ' American Bank v. Mumford, 4 R. debtor until be should pay certain costs. the law gfring him no Hilbisli '0. Hower, 58 Penn. St. 93. I. 478. authority . to make such an order;• a conviction which showed ‘ Westfall 0. Preston, 49 N. Y. 349. ' Watson v. Bodell, 14 M. & W. 58. on its .face that the party had been convicted on default in For other illustrations in tax cases, " Mitchell v. Foster, 12 A. & E. 472. see Eames 0. Johnson, 4 Allen, 382; ° Van Sandau v. Turner, 6 Q. B. 773. responding to a summons returnable less than ten days from _ - ---H4 date, the statute requiring ten days "at least";' process of con tempt issued by a judge of a court when only the court as a. body had authority to issue it;' process issued under an uncon-

1 5 Wend. 170. Van Rensselaer "· Witbeck, 7 N. Y. ' Shergold 1'. Holloway, Stra. 1002; 517; Nat. Bank of Chemung "· El. Rosen 1'. Fischel. 44 Conn. 871. mira, 53 N. Y. 49; Gale 11. Mead, ~ •Cable 11. Cooper, 15 Johns. 152. Hill, 109. Sec Chalker 11. Ives, 55 Penn. SL 81; 1 American Bank"· Mumford, 4 R. Hilblsh 11. Hower, 58 Penn. St. 98. I. 478. •Westfall "· Preston, 49 N. Y. 349. • Watson 11. Bodell, 14 M. & W. 58. For ~tber illustrations in tax caseR, ' Mitchell v. Foster, 12 A. & E. 472. see Eames "· Johnson, 4 Allen, 382; • V n.n Sandau 11. Turner, 6 Q. B. 773.

Original from UNIVERSITYO FM ICHIGA N Cf~ Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google wuo.\'os T0 PERSONAL PROPERTY. 465 stitutional law;‘ a warrant for taxes which directed the collection WROSGS TO PEUSONAL PltOPERTY. 465 of costs when the law allowed none; ' an order of a military oﬁicer

for the seizure of the property of a citizen not in the military stitutional law; 1 a warrant for taxes which directed the collection service;' a conviction by a military commission for an offense only triable in the regular courts,‘ etc. In all these cases the of costs when the law allowed none;' an or

\Vhether, where an oﬂicer knows that back of process fair on only triable in the regnlar conrts,' etc. In all these cases the its face are facts which render it void, he is nevertheless pro- r'1le prevails that the officer who is called upon to execute the tected in serving it, is a point upon which the authorities are not

agreed. In Illinois there are dicta in a number of cases,“ fol- orders of any tribunal is bound to take notice of the law and to lowed at length by an authoritative decision,‘ that where an oﬁicer know that his process is bad if in fact the law will not uphold it. has notice of an excess or want of jurisdiction in the magistrate 'Yhcther, where an officer knows that back of process tair on or board from which his process emanates, he would render himself liable for acting under it. This doctrine is approved in its face are facts wlli~h render it Yoid, he is nevertheless pro Wisconsin,’ but it has not met with general acceptance. It was tected in serving it, is a point upon which the authorities are not expressly denied in New York, in a case in which jurisdiction to

issue the particular process depended on the det'endant’s residence agreed. In Illinois there are dicta in a number of cases,• fol. within the jurisdiction of the court, and the otﬁcer knew him to lowetl at length by an authoritative decision,• that where an officer be a non-resident.’ In Massachusetts, also, it was decided that has notice of an excess or want of jurisdiction in the magistrn_te an officer was not liable for serving process by the arrest of a

person who had been discharged under the insolvent laws, though or board from which his process emanates, he would render him he knew of the discharge.’ A case in Connecticut is very pointed self liable for acting under it. This doctrine is approved in and clear. The ofiicer was sued in trespass for executing a writ Wisconsin,' but it has not met with general acceptance. It was of replevin issued for a horse as having been distrained or impounded. Says Ilosnma, Ch. J.: “The writ was put in his hands. expre;:sly denied in .New York, in a ease in which jurii;diction to as an ofiicer, to serve, and he accordingly served the same by issue the particular process depended on the defendant's residence replevying the before mentioned horse. The first objection to

this act 01' his is founded on a fact proved at the trial of the within the jurisdiction of the court, and the officer knew him to

' Ely v. Thompson, 8 A. K. Marsh. be a non-resident.• In Mai'sachnsetts, also, it was decided that 70; Kelly 0. Bemis, 4 Gray, 83. Pro- an officer was not liable for serving process by the arrest of a cess from a State court in an admi-

ralty case would be of this sort. person who bad been discharged under the insolvent laws, though

Campbell v. Sherman. 35 Wis. 103. he knew of the discharge.' A case in Connecticut is very pointed ' Clark 0. Woods, 2 Exch. 895. and clear. The officer was sned in trespass for executing a writ ' Mitchell o. Harmony, 13 How. 115.

‘ Milligan c. Hovey, 8 Biss. 13. of replevin issued for a horse as having been distrained or im ‘ Barnes 0. Barber, 6 Ill. 401; Guy- pounded. Says IJoSllER, Ch. J.: "The writ was put in his hands. er 0 Andrews, 11 Ill. 494; McDonald by I. Wilkie, 13 lll. 22. as an officer, to serve, and he accordingly served the same

‘ Leachman 0. Doughcrty, 81 Ill. replevying the before mentioned horse. The first objection to 324. this act o'' his is fonnded on a fact llroved at the trial of the

" Sprague 0. Birchard, 1 Wis. 457,

464; Grace 0. Mitchell, 81 Wis. 538,

539. 1 Ely "·Thompson, 8 A. K. Marsh. • Leachman "· Dougherty, 81 Ill. 'Webber o. Gay, 24 Wend. 485. 70; KL"lly o. Bemis, 4 Gray, 83. Pro 324. See, also, People 0. Warren, 5 llill, cess from a State court in an adml ' Sprague e. Birchard, 1 Wis. 457,

440. rnlty case would be of this sort. 464; Grace "· Mit.chell, 81 Wis. 538, ' Wilmarth 0. Burl, 7 Met. 257. See 689. Twitchell o. Shaw, 10 Cush. 46. Campbell "· Sherman, 35 Wis. 103. 1 30 t Clark"· Woods, 2 Exch. 89:>. Webber e. Gay, 24 Wend. 48r>. • llitcbcll "·Harmony, 1'3 How. U:t See, also, People e. Warren, 5 Hill, ' Milllgnn "· Hovey, 8 Biss. 18. 440. • Barnes "· Barber, 6 Ill. 401 ; Guy. • Wilmarth e. Burt, 7 Mel 257. See er" Andrews, 11 Ill. 494; McDonald Twitchell e. Shaw, 10 Cuah. '6. e. Wilkie, 13 lll. 22. 30

Original from Dig tiz UNIVERSITY OF ICHIG N Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 466 'rn1~: LAW or TORTS. cause, to-wit: that he knew the said horse had not been dis- 4136 THE LAW OF TORTS. trained or impounded. From this the plaintiff infers that he ought not to have served the replevin; and that in thus doing can::e, to-wit: that he knew the said hors€ had not been d1s he became a trespasser. I reply to this objection, that the defendant, Phelps, being a legal ofiicer, it became his duty, regard- trained or impounded. From this the plaintiff infers that he less of any knowledge or supposed knowledge of his own, that ought not to have served the replevin; and that in thus doing there existed no cause of action, to serve the writ committed to he became a. trespasser. I reply to this objection, that the him promptly, unhesitatingly, and without restraint from the above mentioned cause. This I consider so firmly established as defendant, Phelps, being a legal officer, it became his duty, regard to render the proposition self evident. The facts on the face of less of any knowledge or supposed knowledge of his own, that the writ constitute his justification, because he was obliged to to obey its mandate; nor was it any part of his duty to determine there existed no cause of action, serve the writ committed to whether the allegations contained in the rcplevin were true. The him promptly, unhesitatingly, and without restraint from the proof of these positions results, incontrovertibly, from his rela- above mentioned cause. This I considP.r so firmly established a.s tive condition. He was an executive ofiicer, whose sole duty it

was to execute, and not to decide on, the truth or suﬁiciency of to rende1· the proposition self evident. The facts on the face of the process committed to him for service. He has no portion of the writ constitute his justification, be,canse he was obliged to judicial authority, nor the means of inquiring into the causes of ohe.Y its mandate; nor was it any part of his duty to determine action contained in the writs and declarations put into his hands

for service. Obedience to all precepts committed to him to be whether the allegations contained in the reple\·in were true. The served is the ﬁrst, second and third part of his duty; and hence, proof of these positions resulttt, incontro\·ertibly, from his rela if they issue from competent authority, and with legal regularity. tive condition. He was an executive officer, whose sole dnty it and so appear on their face, he is justiﬁed for every action of his

within the scope of their command.”‘ “The ground of these was to execute, and not to decide on, the trnth or sufficiency of principles is simply this: That to the magistrate is conﬁded the the process committed to him for service. He has no portion of issuing of writs, and to the sheriff and other executive officers judicial authority, nor the means of in<1niring into the can!'es of is conﬁded the duty of serving them. It is easy to see what

widespread mischief might result from permitting an executive action contn.:neomission. if they ii;sue from competent authority, and with legal regularity,

In short, the executive oﬂicer must do his duty, which is to obey and so appear on their face, he is justified for every action of his all legal writs, and must not arrogate to himself the right of dis- within the scope of their command."' "The ground of these obeying the paramount commands of those to whose mandates he by law is subjected.” ' principles is simply this: That to the magistrate is confided the ‘ Citing Belk o. Broadbent, 3 T. R. ‘Watson v. Watson, 9 Conn. 140, issning of writs, and to the sheriff and other executive officers 183,185; Gruinon v. Raymond, 1 Conn. 146. See Cunningham 0. Mitchell, 67 is confi

1 Citing Belk"· Broadbent, 8 T. R. •Watson 11. Watson, 9 Conn. 140, 183, 18.;; Grumon v. Raymond, 1 Conn. 146. See Cunningham"· Mitchell, 67 40; Miller"· Davis, Comyn, 500. Penn. St. 78.

A doctrine precisely identical has been laid down in Louisiana ‘ WHOXOA TO PERAONAL PROPERTY. 467 and in Michigan.’ The cases decided are specially signiﬁcant in

this: that in each ease the fact which made the process illegal

was within the orlicial knowledge of the oﬂicer claiming the pro- A do<'trine preci~ely ident.ical hall been laid down in Lomsi:um' tcction. It seems to us, therefore, that the weight of authority a11

to judge of it by facts within his knowledge which may he was within the official knowledge of the officer claiming the pro supposed to invalidate it. But when it is settled that an officer tC'ction. It scemt1 to U1', therefore, that the weight of authority may safely execute process, though he may know of facts to and of rem•on is clearly in favor of tho proposition, that the invalidate it, it does not of necessity follow that he cannot safely refuse to do so. It is, indeed, intimated by Chief Justice Hos- offi<"er m:iy safoly obey all process fair on its face, and is not bound .\n:r:, in the citation above given, that duty requires him to pro- to jn1lge of it by facts within his knowledge which mn.y he ceed and serve the process; but the courts in New York have

held otherwise.’ And, indeed, it would seem an anomaly that a snppost'd to invalidate it. But when it is Fettled that an otfa·er plaintiff should be at liberty to hold an oflicer responsible for may snfoly execute proeess, though he may k11ow of facts to refusing to serve a writ, the service of which would render the inrnlidate it, it does not of necessity follow that he cannot Fnfely plaintiff himself liable as a trespasser. Says \VAr.in;u, J.. in a recent case: “ As a general rule, an ofiicer may justify, under a rcfnl'-e to do so. It is, indeed, intimated by Chief Justice Hos writ regular on its face, whether the court had jurisdiction or not, :11n:r., in the citation above given, that dnty requires him to pro although the writ may be void. Or he may, if he chooses, refuse ceed and serve the process; but the courts in New York ha\'e to execute such a writ.” ‘

Magistrate, when Liable. The rule ofudicial irresponsibility, held otherwise.• And, in

verse of the rule is true, that if he acts without jurisdiction he refm;ing to serve a writ, the service of whi<'h wonld render the is liable, even though his process is perfectly valid on its face, plaintiff himsC'lf liahlc as a trcspas;;er. Hays w· Ar.KKit, J .• in a and he has acted with proper motive. The principle is illus- re<'ent en,;c: "As a general rule, an officer may ju:;tify, 11111lc'r a trated by eases in which a justice of the peace proceeded to pun- ish for an offense not committed within his jurisdiction; the liters writ regnlar on its face, whether the court lnid jurisdiction or n.ot, on which his jurisdiction depended being known to him." So although the writ may be void. Or he may, if he choose8, refuse assessors are liable who impose taxes on persons not taxable

' Brainard v. Ilead, 15 La. Ann. Camp, 16 Wend. 562. St-e, llﬁ\\‘P\'t'l', to execute such a writ."•

-189. Clearwater v. Brill, 11 N. Y. Sup. Ct.

' Wall 0. Trumbull, 16 Mich. 228; (4 Iiun,) 728. Magistrate, when Liable. The rule ofjudicial irresponsibility, Bird 0. Perkins, 33 Mich. 2H. See. ‘Davis 0. Wilson, 61 Ill. '"here the magistrate has ncted within his juri.;

‘Horton o. lIendershot,1 Hill, 118; ' Miller v. Grice, 2 Rich. 27; Piper with the authorities which support it, in another 11lnC'c. The con

Cornell v. Barnes, 7 Hill, 35; Dunlap 0. Pearson, 2 Gray, 120. verse of the rule is true, thnt if he nets without juri,;didion he 0. Hunting, 2 Denio, 043; Earl 0. is liahle, en•n though his proeess is perfoctly valid on its face, ‘T in

3: to and he has acted with proper motive. The principle i~ illns . _»r trated by cm:es in whirh a jn~tice of the peace proet·eded to pnn C7! ish for an offense not committ1.,'

P on which his jurisdiction depemled being known to him.' So I assessors are liable who impose taxes on persons not taxahle

1 Brainard t'I. IIend, lli La. Ann. Camp, 16 Wend. 502. Sl·e, hnwp\·1·r, 489. Clearwater"· Brill, 11 N. Y. Sup. Ct. 'Wall "· Trumbull, 16 :Mich. 228; (4 Hun,) 728. Bird "· P1•rkius, aa Mich. :?x. See. • Davis 11. Wilson, 61 Ill. 52i, 020. also, Richiml,; v. Xye, Ii Orc.i:. ;;H:!. See, also, Hill 11. Wuit, o Vt. 12-1. ' Horton"· Hendershot, 1 Hill, ltR; ' ll illcr 11. Grice, 2 Rich. 2i; Piper Cornell c. Bo.rne.i, i Hill, 35; Dunlap •·Pearson, 2 Gray, 120. "· Hunting, 2 Denio, 643; Earl ti.

spread upon the tax roll a sum never lawfully voted, or in excess of that which the law allows to be levied,’ or a sum which has within their districts, and issue process for their co11ection,' or been levied for an unauthorized purpose,“ or issue a warrant for spread upon the tax roll a sum never lawfully voted, or in cxc.'068 the collection of sums which have not been properly reported to

them as allowed by the competent authority,‘ or alter the assess- of that which the law allows to be Je,·ied,9 or a sum which has ment after, by law, it has passed from their control, so that the been Je,·ied for an unauthorized purpo.:-lc: or issue a warrant for alteration is wholly an unotiicial act.‘ the collection of sums which have not been properly report.ed. to

Liability of Party. The party is liable where he participates

in the unlawful action of either the magistrate or the ministerial them as allowed by the competent authority,' or alter the assess officer. He is, in general, responsible for setting the court or ment after, by law, it has passed from their control, so that the magistrate in motion in a case where they have no authority to alteration is wholly an unofficial act.• act;° and perhaps to this rule there is no exception but this:

that if the jurisdiction depends upon the facts, and these are pre- sented to a court having general jurisdiction of that class of Liability of Party. The party is liable where he participat.eA cases, and the court decides that it has authority to act, and pro-

ceeds to do so, this decision protects not the oﬁicer merelv, but in the unlawful action of either the magiBtrate or the ministerial the party also.’ But every party has a right to assume that the officer. Ile is, in ~ncral, responsible for setting the court or oﬁicer will proceed to execute lawful process in a lawful manner, magistrate in motion in a case where they have no authority to and if, instead of doing so, the officer proceeds illegally, the party

is not responsible, unless he participated in or advised the abuse.‘ act;• and perhaps to this rule there is no exception bot this:

' Mygatt 1:. Wnshburn, 15 N. Y. 816; that if the jurisdiction depends upon the facts, and these are pre Bennett 1;. Buffalo, 1'7 N. Y. 383; sented to a court having general jurisdiction of that clttss of Clark 1». Norton. 49 N. Y. 243; Dor- win v. Strickland, 57 N. Y. 492; Buy- cases, and the court decides that it has authority to act, and pro tlam 0. Keys, 13 Johns. 444; Marlin cee

1: Mansﬁeld, 3 Mass. 419; Agry 0.

Young, 11 Mass. 220; Gage v. Currier, the party also.' But every party has a right to assume that the

4 Pick. 399; Lyman 0. Fiskc, 17 Pick. officer will proceed to execute lawful proeess in a lawful manner, 231; Fairbanks v. Kittredge, 24 Vt, 9; and if, instead of doing so, the officer proceeds illegalJy, the party liarriman 0. Stevens, 43 Me. 497;

\Vnre v. Percival, 61 Me. 391. is not responsible, unless he participated in or advised the abuse.'

"Grafton Bank v. Kimball, 20N.

H. 107; Cooley on Taxation, 554, and 1 numerous cases cited. Mygattfl. Washburn, 15 N. Y. 816; • Stetson fl. Goldsmith, 80 Ala. 602;

3 Stetson 0. Kempton, 13 Mass. 271; B<>nnctt fl. Buff11lo, 17 N. Y. 883; 8. C. 81 Ala. 649.

Drew 1:. Davis, 10 Vt. 506. Clark 11. Nonon, 49 N. Y. 24:l; Dor. 'West fl. Smallwood, 8 M • .t W .

‘ Clark v. Axford, 5 Mich. 182. win 11. Strickland, 57 N. Y. 492; Buy. 418. "Where a mngistrate has a gen 5 Bristol Manuf. Co. v. Gridley, 28 dam fl. Keys, 18 Johns. 444; :Murtin eral jurisdiction over the subject mat Conn. 201; Fcrton o. Feller, 33 Mich. • i-. ~lansflcld, 8 )foss. 419; Agry fl, ter, and a party comes before him and 199. See Garﬁeld v. Douglass, 22 Ill. Young, 11Mass.220; Gftge fl. Cnrrl<>r, prefers a complaint, upon which the I00 4 Pick. 31)9; J,ymsn fl. Fiske, 17 Pick. magistrate makes a mistake in think

' Stetson o. Goldsmith, 30 Ala. 602; 281; Fairbanks 1>. Kittredge, 24 Vt, 9; ing lt a case within his authority, S. C. 31 Ala. 049.

" West o. Smallwood, 3 M. & W. llnrriman "· Stevens, 4S Me. 497; 1:1.Dd grants a warrant which is not

418. “Where a magistrate has a gen- W11re ti. Percival, 61Me.891. ju11tiftable in point or law, the party eral jurisdiction over the subject mat- •Grafton Bank "· Kimball, 00 Y. complaining ls not liable u a trespas ter, and a party comes before him and H. 107; Cooley on Taxation, 664, and ser, hut the only remedy against him prefers a complaint, upon which the numerous cases cited. is by an action .upon the case, if he magistrate makes a mistake in think- • StPtson fl. Kempton, 18 Masa. 271; has acted maliciously." Lord Anm ing it a case within his authority, Drew o. Davis, 10 Vt. 506. GER, Ch. B. But it wu agreed In the and grants a warrant which is not • L'lark 1>. Axford, 5 Mich. 182. same case that the party would have justiﬁable in point of law, the party ' Bristol :"tlanuf. Co. ti. Gridley, 28 been liable if he had participated complaining is not liable as a trespas- 11. ser, hut the only remedy against him Conn. 201 ; Ferton Feller, 88 Mich. with the officer in the service of the

is by an action -upon the case, if he 199. Bee Garfield fl. Douglass, 22 Ill warrant. has acted maliciously." Lord Anus- 100 • Perrin •· Claflin, 11 Mo. 18;

GER, Ch. B. But it was agreed in the

same case that the party would have

been liable if he had participated

with the oiﬁcer in the service of the

warrant.

° Perrin 0. Claﬂin, 11 Mo. 13;

_ _ (M <1 19 IZ Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google WRONGS T0 1’l~ll{SONAL PROPERTY. 469

Protection of Purchaser under Execution. One who becomes WRONGS TO PKRSON AL PROPERTY. 469 purchaser of personal property at an execution sale is concerned

only with the judgment, the levy, the execution and the sale; if

these are apparently valid, he need look no further.‘ To say Protection of Purchaser under Execution. One who becomes that if the court rendering the judgment had no jurisdiction all purchaser of personal property at an execution sale is conccmc

for any other reason, the judgment was void,’ or had been satis- thei>e are apparently valid, he need look no fn rther.' To say

ﬁed,‘ or if, the judgment being valid, the execution for any rea- that if the court rendering the judgment had no jurisdiction all son was void.‘ or was issued when none was allowed by law.‘ prorce

138; Snively r. Fuhnestock, 18 Md.

391; Averill 0. Williams, 1 Denio,-501; hns no authority t<> sell in that manner, and the purchaser must

Clay v. Sandefer, 12 B. Mon. 334. take notice of such an illc•gality.' The same would 'be true if the ' Wheaton 1:. Sexton, 4 Wheat. 503; propert.y was not pret:ent, or within view of the 'bi

' Falkner o. Guild, 10 Wis. 563; The rule of protedion, moreover, is not so broad when the Wilson s. Arnold, 5 Mich. 98; Gray plaintiff in tho proce:=;s, or his attorney, or anyone folly cogni-

0. Iiawes, 8 (Yul. 562; Miller 1:. Handy,

40 Ill. 448; Mulvey v. Carpenter, 78

Ill. 5-S0; Borders v. Murphy, 78 Ill. Princeton Bunk "· Gibson, 20 N. J. Eaton, 11 N . H. 337; Brem"· Jamie. 81; Abbott 0. Sheppard, 4; 1l[o.2I3; 138; Snively r. Fuhncstock, 18 :Md. son, 70 N. C. MG. Clark r. Fowler, 5 Allen, 45. 8Vl; Avel"ill 1'. Williams, 1 Denio,501; •Sheetz" Wynkoop, 74 Penn. St. ‘Conrad v. McGee. 9 Yerg. 428; Clay "· Sandefer, 12 .H . .?tlon. 334. 198; Cadmus 11. Jackson, 52 Penn. St.

Welch 1:. Butter, 24 Geo. 445; Hol- 1 'Vheaton "· Sexton, 4 Wheat. 50:1; 20.i. The case would of course be lingsworth v. Bagley, 35 Tex. 315; Lenox t'. Clark, 52 )lo. 115. still plainer, if possible, if no jmlg. Harshcy v. Blackmarr, 20 Iowa, 161; 1 Falkner "· Guild, 10 Wis. 5G3; ment at all bad been rcnderell. Craw. Sanders 0. Rains, 10 Mo. 770; Hig- t'. ti gins r. Peltzer, 49 Mo. 152. Wilson Arnold, llich. 98; Grny ford "·Dalrymple, 70 :N". C. 156 ; Craft

‘ Jackson o. Morse, 18 Johns. 4-41; "· I111wes, 8 Cnl. 5{;2; :Mille!" 11. IIaody, "· Merrill, 14 N. Y. 4,j6; Vnsline "·

Cameron o. Irwin, 5 Hill, 272; King 40 Ill. 448; Mul vcy "· Carpenter, 'i8 Fury, 2 S. & R. 432. v. Goodwin, 16 Mass. 63; Loomis 0. Ill. 580; Borders "· :nurphy, 78 Ill. ' Ricketts "· linangst, lei Penn. St. Storrs, 4 Conn. 440; Kennedy 0. 81; Abbott "· Sheppard, 4! ~lo. 2i3; 90; llutchimmn "· Cassidy, 46 lio. 431. Duncklee, 1 Gray, 65; Laval o. Row- Clnrk r. Fowler, 5 Allen, 4;). 8 Car.•on o. Stout, 17 Johns. 122; ley, 17 Ind. 86. • Conrad v. McGee, D Yerg. 428; Linen doll o. Dok, 14 Johns. 2:.!;3; Hay

' Woodcock o. Bennett, 1 Cow. 711; We!ch "· Dutter, 24 Geo. 44,=;; Hol "· Harcourt, 19 Wend. 497; Lowry o. Palmer v. Palmer, 2 Conn. 462; Boal's lingsworth "· B:1gley, 35 Tex. :ll.'>; Coulter, 9 Penn. St. 349; Carey "· Lessee v. King, 6 Ohio, 11; French v. Harsbcy e. lilnckmarr, 20 low:i., 161; Bright, 58 Penn. St. 70, 84; Kennec.ly "· Eaton, 11 N. H. 337; Brern v. Jamie-

son, 70 N. C. 566. 81rndcni "· Uains, 10 Mo. 770; Hig Clnyton, 29 .Ark. 270; Rowau "· He.

‘ Sheetz v Wynkoop, '74 Penn. St. gins r. Peltzer, 49 Mo. 152. fold, 81 Ark. 648; Winfield "· Adams,

198; Cadmus 0. Jackson, 52 Penn. St. 4 Jackson "· Morse, 18 Johns. 441; 84 :Mich. 437. In Missouri it seems

295. The case would of course be Cameron e. Irwin, 5 Hill, 272 ; .King that such a sale is only voidable on still plainer, if possible, if no judg- "· Goodwin, 16 lll\Ss. 6:J; Loomis "· motion. En.d~ "·Stephens, 03 ~lo . 90. ment at all had been rendered. Craw- Storrs, 4 Conn. 440; Kennedy '" In Mississippi a sale made after the ford v. Dalrymplc, 70 N. 0.156; Craft Duncklee, 1 Hrny, M; Laval t'. Row return day of the execution i11 rnid.

0. Merrill, 14 N. Y. 456; Vastine 0. ley, 17 Ind. 36. Williamson tt. Williamson, 52 lliss.

Fury, 2 S. & R. 482. 1 Woodcock"· Hennett, 1 Cow. 711; 725. In othrr Stutc11, however, this " Ricketts 0. Unangst, 15 Penn. St. Palmer r. Palmer, 2 Conn. 462; Ilo:il 's will be found provided for in many 90; Hutcliinson 0. Cassidy,46 Mo.-131. 11. cnscs. ‘Carson v. Stout, 17 Johns. 122; Lessee King, 6 Ohio, 11; French "·

Linentloll v. Dok. 14 Johns. 223; Ray

v. Harcourt, 19 Wend. 407; Lowry v.

Coulter, 9 Penn. St. 349; Carey 0.

Bright, 58 Penn. St. 70, 84; Kennedy 1;.

Clayton, 29 Ark. 270; Rowan v. Re-

feld, 31 Ark. 648; Winﬁeld v. Adams,

84 Mich. 437. In Missouri it seems Original from that such a sale is only voidable on D liz by motion. Ends 0. Stephens, 03 Mo. 90. UNIVERSITY OF ICHIG N

In Mississippi a sale made after the

return day of the execution is void. Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google

Williamson c. Williamson, 52 Miss.

725. In other States, however, this

will be found provided for in many

eases. 470 T1115 LAW or TORTS. ' I zant of all the pt‘o;'t-odin_'_[s, becomes purchaser, as it is when the 470 TIIE LAW OF TOUTS.

purchaser is one teclmie.nll_y known as a purchaser in good faith; that is to say, a purchaser who has paid the purchase price with- zant of all the pro~·l·edin;.rs, bec11rnes pnrcha$er, as it is when the out notice of defects in the proceedings. For example, if the OllC R.S oiiicer sells without giving the proper notice of sale, the title of purchaser is ted111ically k11uw11 a purchaser in guod faith; a purchaser in good faith would not thereby be aﬁ'ected;‘ but that is to say, a purl'hascr who has paid the purchase µrice with the plaintiff and his attorney must he supposed to have known out notice of

motion. So a purchase by one in good faith would be protected. oHicer selli> witltout giving the proper notice of sale, the title of even though the judgment under which it was made should sub- a pmchasPr in good faith would uot thereby be affected;' hut sequently be set aside for e'rrors;’ but it would be otherwise if the plaintiff a11d his attorney must be supposed to have k11ow11 the purcliase were made by one who had charge of the proceed-

ings, actually or by implication of law.“ ot" the officer's default, aml a sale to either would be set nsith• on

Locality of Wrongs. It is a general rule that for the pur- motion. So a purchase Ly one in ~ood ti.tith would be protl'c~ed.

poses of redress it is immaterial where a wrong was committed; e,·en thongh tlic judg-11Hmt under which it wa,; made should ~uh in other Words, a wrong being personal, 1'ed|‘es<, may be sought for it wherever the wrong-doer may he found. To this there are sequently be set aside fur e'rrurs; • but it would be otherwise if a few exceptions, in which actions are said to be local, and must, the purcha:;e were made by one who l1ad charge of the proceed theret'ore, he brought not only within the country, but also

‘ Whittaker r. Sumner, '7 Pick. 551: ings, actually or by implication of law:

White v. Cronkhite, 35 Ind. 483; Ho- bcin 1-. Murphy, 20 Mo. 447 ; Curd v. Locality of Wrongs. It is a general rule that for the pur Lnchlnnd, 4!) Mo. 451; llnnks v. Neal, poses of re(lress it is immaterial where a wrung was c1>111mitted; 44 Miss. 212; Osgood v. Blnckmorc,

59 Ill. 261; Pollard '1‘. KinE, 63 Ill. in other words, a wroug being 1)erso11al, redres-! may he sought 36; Wallace r. Trustees, 5'3 Geo 164; for it wherc\·er the wro11~-d·>er may be found. To this there a.re

VVade 1:. Saunders, 70 N. C. 270; Lee few v. Ilowes, 30 Up. Can. Q. B. 292. a exce11tions, in which actions are said to be local, and must,

’ (‘lurk v. Pinney, 6 (Tow. 297; therefor?, lie brought not only within the country, but also

\\'oo

Dorsey 1:. Thompson, 37 Md. 25; 1 Whittaker r. Sumner, 7 Pick. 551: ln~ton, 6 Pct. 8. The general rule Yogler 0. Montgomery, 54 Mo. 577; D. Stinson n. Ross, 51 Me. 556; Guitcau White Cronkhitl', a5 Ind. 48:J; 110- that the purchaser bona fide is not

v. \Visely, 47 Ill. 433; Goodwin '0. bein t'. l\lurphy, 20 )lo 447; Curd ti. conn•rned with mere irregularities is

Mix. 38 Ill. 115; Hubbcll 12. Broad- Lachlan

Clarke, 10 Gratt. 164; Reynolds 0. Wa

Harris, 14 (lal. 667; Huys e. Ca-"sell, "·Howes, 30 Up. Can. Q. B. 2~2. Exccnlions. The f·•llowing may be 70 lll. 669; Holland '0. Adair, 55 Mo. ' <'lark "· Pinney. 0 Cow. 297; mentioned: Hamilton ti. Shrewsl.Jury, 40; '1‘wogood r. Franklin, 27 Iowa, ""n<>llc·ock ·~. Bennett, 1 Cow. 711; 4 Hand. 427; Jackson v. Hosevclt. la 239; Bank of U. S. v. Bank of Wash- 'IJ. ti. - - _ -. _ ___.._.-ml Do; ~ry Thompson, 37 l\ld. 2:); Johns. 97; Dowdell Neal, 10 Geo. ington, 6 Pet. 8. The general rule Yng·ler ti. )lon:.i:omery, 54 :\lo. 577; 148; Dingledine 11. Ilershmnn, 53 Ill. that the purchaser bona ﬁdc is not Stinson ti. Hoss. 51 Me. 5:i6; Guill-au 280; Boles ·v. Johnston, 2-3 Cal. 226; concerned with mere irregularities is "· Wisrly, 47 Ill. 433; Goodwin '!'. Sabin "· Austin, 19 Wis. 421; Cooper laid down in so many cases that no l\Iix. 38 Ill. 115; Hubbell ti. Broad. "· Borrall, 10 Penn. St. 491 ; Reid ti. attempt will be made to give them. well. 8 Ohio, 120. Largent, 4 Jones (N. C.) .t34; Morde

They are collected in Rorer on Judi- 3 Corwith t• State Rmk, 15 Wis. cai 11. Speight, 3 Dev. 428; Doe "· cial Sales, with industry and dis- 2.B!J; S. V. 18 Wi!!. 560; Buchonnn "· l\lycrs. !) Up. Van. Q. B. 465. If the crimination, and also in Freeman on Clnrke, 10 Grntt. 164; Reynolds '" plaintiff's assii.tnce is purchaser, he Executions. The following may be Harris, 14 Cl\l. 6G7; Hays 'I:. Ca•sell, gets no better title than the plaintiff mentioned: Hamilton 0. Shrcwsbury,

4 Hund. 427; Jackson av. Rosevelt-. 13 70 Ill. 669; Hollnnd ti. Aclair, 55 Mo. would. llcJilton "·Love, 13 Ill. 486;

Johns. 97; Dowdell 1;. Neal, 10 Geo. 40; Twogood r. Franklin, 27 Iowa, Reynolds "· Hosmer, 4:i Cal. 616.

148; Dinglcdine 1:. Ilerslnnan, 53 Ill. 230; Bank of C. S. v. Bank of Wash.

280; Boles -v. Johnston, 23 Cal. 226;

Sabin v. Austin, 19 Wis. 421; Cooper

0. Borrall, 10 Penn. St. 491; Reid 0.

Largeut, 4 Jones (N. C.) 454; Morde-

cai 0. Speight, 3 Dev. 428; Doe 0.

Myers. 9 Up. Can. Q. B. 465. If the plaintitf’s assignee is purchaser, he Original from gets no better title than the plaintiff D liz by would. McJilton Iv. Love, 13 Ill. 486; UNIVERSITY OF ICHIG N

Reynolds -v. Hosmer, 45 Cal. 616. - - --~ : Generated for asbigham (University of Michigan) on 2013-04-29 19:42 GMT / http://hdl.handle.net/2027/mdp.35112103469740 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google V\'RO.\'(§S TO PERSONAL PROPERTY. 471 wnoxc:s TO P.ERSONAL PJWPER1'Y. 471 within the very county where they arose. The distinction

between transitory and local actions is this: If the cause of within the very county where they arose. The di~tinction action is one that might have arisen anywhere, then it is transitory; but if it eould only have arisen in one place, then it is betwct·n tmnsitory and local actions is this: If the cause of local. Therefore, while an action of trespass to the person or for action is one that might have arisen anywhere, then it is transi the conversion of goods is transitory, action for ﬂowing lauds is

local, because they can he ﬂooded only where they are. For the tory; but if it could only have arisen in one place, then it is most part tho.actions which are local are those brought for the local. Therefore, while an action of trespass to the person or fur recovery of real estate, or for injuries thereto or to easements. the cotl\"ersion of goods is transitory, action for flowing lands i3 In the leading case of J1 ostyn v. Fabrigus, the governor of a

British colony was prosecuted in England, and a heavy judgment local, because they can he flooded only where they are. .For the recovered against him for an assault and imprisonment of the most part the.actions which are local are those brought for the plaintiif without authority of law in the colony.‘ In a later case reco,·ery of real estate, or for injuries thereto or to easements. it is held to he unimportant whether the foreign tort was or was not committed within territory subject to the British crown;' In the leading case of Jfostyn v. Fabrigas, the go\·ernor of' a but it is agreed that to support an action the act must have British colony was pro~ecuted in England, aml a heavy judgment been wrongful or punishable where it took place, and that what-

ever would be a good defense to the action, if brought there, reeo,·erc

country. The decision of Chief Justice Maasuau. to that effect not (·ommitted within territory sn~icct to the British crown;' in the suit brought by Mr. Edward Livingston against Mr. but it it> agree(} that to support au action the act must have Jefferson, for having forcibly dispossessed him of the hatture in been wrongful or pnnishahle where it took place, and that what New Orleans, has been often followed without question.’ But if by means of the trespass anything is severed from the realty so ever woultl be a good defense to the action, if' brought there, as to become personal property, and this is afterward converted must boa good defense everywhere.' ' .\‘l0styn 0. Fabrigas, Cowp. 161. That actions for tre,,;passct> on lands in a. foreign country can See Buron 1;. Denman, 2 Exch. 167.

’ Scott r. Lord St-_\'tnnnr, 1 II. 6: C. not be sustained, is the settled law in England• and in this 210. In Wilson r. McKenzie, 7 Hill, country. The decision of Chief Justice MARSHALL to that effect

95, it was decided that an action

would lie against an oﬂleer of the in the snit brought by Mr. Edward Living,;ton agninst Mr. navy for illegally assaulting and im- Jeffcrflon, for having forcibly dispossPi'~ed him of the battnre in prisoniug one of his subordinates on New Orleans, has been often followed without question.' But if the high seas, though the act was

done under color of naval discipline. by means of the trespass anything is se\·ered from the realty so

NELSON, Ch. J., cites in his opinion, as to become personal property, and this is afrerward converted

among other cases, Warden r. Bailey,

4 Tnunt. 67; S. C. 4 Maule & S. 400; 1 Hanneford v. Hunn, 2 C. & P. 148. lfostyn "· Fabrigns, Cowp. tell. S. C. In Exch. Ch. L. R. 6 Q. B. 1;

' Phillips 1:. Eyre, L. R. 4 Q. B. 225; Sec Buron"· Denm~n. 2 Exch. 167. The China. 7 Wall. 5:J, 64; !:\mith "·

S. C. in Exch. Ch. L. R. 6 Q. B. 1; • Scott r. Lord 8l'.YlllOl1r, 1 II. & C. Condry, 1 How. 28; Stout "· Wood,

The China, 7 Wall. 53, 64; Smith 0. 210. In Wilson r. lkKenzie, 7 Hill, 1 Blurkf. 71 i Wall "· Hoskins, 5 Ired. Condry, 1 How. 28; Stout o. Wood. !la, it was decided that an Rl'tion 177; Mahler"· New York, etc., Trans. 1 Blackl‘. 71 ; Wall 0. Iloskins, 5 Ired. would I ie against an omcer of the Co.,&; N. Y. 3.52. 177; Mahler v. New York, etc., Trans. navy for Illegally assaulting and im. • Dnulson r. Mathews, 4 T. R. 503,

Co., 85 N. Y. 352. prisnning one of his subordinntcs on O\'t>rrul 111~ some early ni1i priwr cases.

‘ Doulson 1-. Mathews, 4 T. R. 503, the high sens, though the act was • Livini..'"!'ton "· Jefferson, 1 Brock. overruling some early m'u' prim: cases. done under color of nuvnl discipline. 203. And see Watts' Adm."· Kinney, ‘ Livingston o. Jetferson, 1 Brock.

203. And see Watts’ Adm. 1:. Kinney, NELSON, Ch. J., cites in his opinion, 23 Wend. 484; S. C. 6 Hill, 82 ; Cham

23 Wend. 484; S. C. 6 Hill, 82; Cham- nmnng other cases, \Varden r. Bailey, pion "· Doughty, 18 N. J. S; Ham "· pion v. Doughty, 18 N. J. 3; Ham 0. 4 Tnunt. 6i; S. C. 4 )laule & 8. 400; Rogers, 6 Bl11ckf. 550; Prichard "·

Rogers, 6 Blackf. 559; Prichard 0. Hanneford r. Hunn, 2 C. & P. 148. Campbell, ti Ind. 494; Chapman 11. Campbell, 5 Ind. 494; Chapman v. 'Phillips t. Eyre, L. R. 4 Q. B. 2:.!5; Morgan, 2 Green (Iowa), 874.

Morgan, 2 Green (Iowa), 874.

he may be sued anywhere.‘

It has been made a question whether, if by a wrongful act by the trespasser to his own use, it seems that for the conversion committed in one State, real property is injured in another, he may be sued anywhere.' action may not be brought in the former for that injury; and in It has been made a question whether, if by a wrongful act one case Mr. Justice GRIER, at the circuit, held that it might.’

In New Hampshire, however, it is held that suit can be brought committed in one State, real property is injured in another, only in the jurisdiction where the land lies.’ action may not be brought in the former for that injury; and in

Where a new right of action is given by the statute for that one case Mr. Justice GRIER, at the circuit, held that it might.2 for which no action would lie at the common law, such action can only be brought within the State or country whose statute In New Hampshire, however, it is held that suit can be brought gives the right and for wrongs there suifered. This has often only in the jurisdiction where the land lies.• been decided under those statutes which give an action for Where a new right of action is given by the statute for that causing death by wrongful act, neglect, or default.‘ And where a further remedy is given for that which is an actionable wrong for which no action would Jie at the common law, such action at the common law, it can be enforced only by the courts of the can only be brought within the State or country whose statute jurisdiction giving it, and for wrongs there suffered.‘ gi,•es the right and for wrongs there suffered. This has often ‘ Tyson o. McGuineas. 25 Wis. 656.

In Louisiana, actions for injuries to been decided under those statutes which give an action for real estate are transitory, and on that cansing death by wrongfnl act, neglect, or default.• And where ground an action for an injury to real

estate in Illinois was su~tained. a further remedy is given for that which is an actionable wrong

Holmes v. Barclay, 4 La. Ann. 63. at the common law, it can be enforced only by the courts of the ‘Bundle 0. Del. & Rar. Canal, 1 jurisdiction giving it, and for wrongs there suffered.•

Wall. Jr. 275. The conclusion of the

learned judge was that the plaintiff might elect to sue in either jurisdic- 1 Tyson "· McGuineas, 25 Wis. 656. Co., 25 N. H. 52.~. Compare Sutton ti. tion, the act done being in one and In Lou;siana, actions for injuries to Cla1·kc, 6 Taunt. 211; fl'hon1pson ti. the injury accomplished in the other. real estate nrc trnnsitory, and on that Crock<.-r, I) Pick. 59. In Ohio an action was sustained for ground an action for an injury to real • Whitfo1·d "· P.mama R. R. Co., 23 the diversion of water in Pennsylva- estate in Illinois was su.. tained. N. Y. 465; Richardson "· N. Y. Cent. nia to the injury of lands in the Holmes 11. Bar<.:lay, 4 La. Ann. 63. R. R. Co., (18 Mass. tsl5; State ti. Pitt8- former State. Thayer 0. Brooks, 17 1 Rundle "· Del. & Rar. Can11l, 1 bul'gh, etc., R. R. Co., 45 Md. 41; Ohio, 489. Wall. Jr. 275. The conclusion of tho Neetlham "· Grand Trunk R. Co., 38

'Worster 0. Winnipiseogee Lake . learned judge was that the plaintiff Yt. 294; Woodard "· Michigan, etc., Co., 25 N. H. 525. Compare Sutton 1:. might elect to sue in either jurisdic R. R. Co., 10 Ohio, (N. s.), 121. Clarke, 6 Taunt. 29; Thompson e. tion, the act done being in one and 6 Crockcr, 9 Pick. 59. One cannot sue in Massachusetts

‘ Whitford '0. Panama R. R. Co., 23 the injury accomplished in the other. under its statutes for an injury done

N. Y. 465; Richardson v. N. Y. Cent. In Ohio an action was sustained for by a dog in New Hampshire, though

R. R. Co., 98 Mass. 85; State v. Pitts- the diversion of water in Pennsylva. the dog is owned and kept in the burgh, etc., R. R. Co., 45 Md. 41; nia to the injury of lands in the former State, and strayed away to Ncedham v. Grand Trunk R. Co., 38 former St.ute. Th&yer "· Brooks, 17 commit the injul'y. Le Fore&t "· Tol Vt. 294; Woodard 1:. Michigan, etc., Ohio, 48lJ. man, 117 Ma88. 109. R. R. Co., 10 Ohio, (21. s.), 121. 1 Worster o. Winnipiseogee Lake

‘ One cannot sue in Massachusetts

under its statutes for an injury done

by a dog in New Hampshire, though

the dog is owned and kept in the

former State, and strayed away to

commit the injury. Le Forest v. Tol-

man, 117 Mass. 109.