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OF COURT
96. The Common Law Action of Trespass on the Case continues to exist under modern Codes, Practice Acts and Rules of Court, al­though the label, as such, has been removed.
TI-fE Modem Status of the Action of Tres­pass on the Case appears plainly from two cases, one decided in l939,~ the other in

1951.~~
In the first case, Williamson v. Columbia Gas d Electric Cor’poration,6° in which the plaintiff complained that the acts of The Columbia Gas & Electric Corporation were in violation of Section 7 of the Clayton Act,6’ the section which barred corporations from acquiring, directly or indirectly, any stock of another corporation engaged in commerce,


58. Williamson v. Columbia Gas & Electric Corp.,

11OF(2d) 15 (3rd Cira939).


59. Bisener v. Maxwell, 28 M.P.Rep. 213 (1951).
W. Supra, note 58.
81. 15 U.S.C., § 18, 15 IJ.8.C.A. ~ 18.

204


OFFENSIVE PLEADINGS

Ch. S


where the effect would be to substantially lessen competition, the plaintiff also claimed threefold damages under Section 4 of the Clayton Act.°2 The defendant moved to dis­miss the complaint, on the ground that it did not state a cause of action which accrued within a period of three years prior to the Commencement of the Action. It was stip­ulated that the right of action accrued not later than January 1, 1931. The complaint having been dismissed by the District Court, the plaintiff appealed, thus raising a question as to whether the plaintiff’s action was bar­red under the applicable Delaware Statute of Limitations,°3 Section 5129 of which pro­vided: “No Action of Trespass, no Action of Repleviri, no Action of Detinue, no Action of Debt not found upon a Record or Special­ty, no Action of Account, no Action of As­sumpsit, and no Action upon the Case shall be brought after the expiration of three years from the accruing of the cause of such ac­tion.”
In this situation the plaintiff concluded his action was in the nature of an Action of Debt on a Specialty and hence was not barred, having been brought within twenty years, the period prescribed by the Statute. The de­fendant argued that the complaint set forth a cause in tort for which an Action on the Case was the only remedy and that since the suit was brought more than three years after the action had accrued, recovery was barred by the Statute. Thus, in the Appeal, the is­sue of law was whether an Action in the Nature of Debt on a Specialty at Common Law might be brought to recover Damages for injuries to business resulting from acts prohibited by Section 7 of the Clayton Act; or whether an action in the Nature of the Common Law Action of Trespass on the Case was the sole remedy of the aggrieved party.
62. 15 U.S.C. 15, 15 U.S.C.A. § 15.

In affirming the Order of the District Court, the Circuit Court of Appeals held that the action sounded in tort and that the appro­priate Form of Action was the Common Law Action of Trespass on the Case. Chief Jus­tice Mans declared: “In order to apply a stat­ute of limitations, such as that of Delaware, which reads in terms of Common Law Ac­tions, to a Civil Action brought in a District Court, it is necessary for the court through a consideration of the nature of the Cause of Action disclosed in the complaint to deter­mine the Form of Action which would have been brought upon it at Common Law. It is evident that the complaint in the case before us discloses a Cause of Action which, under the Common Law of Delaware, would be en­forceable in an Action on the Case and not in an Action of Debt on a Specialty. The Dis­trict Court, therefore, properly held that the action was barred by the Delaware Stat­ute of Limitations.”


In the second case, Ei.sener v. Maxwell,” a Canadian case decided in 1951, the plaintiff’s Statement of Claim alleged Damages caused by the negligent operation of a motor vehicle on a highway, to which the defendant plead­ed that there had been no negligence. The Statute of Limitations for batteries was one year, and for causes which formerly would have been brought in the Form of Action Known as Trespass on the Case, six years. At the Trial the defendant urged that an action for personal injury was an Action I or Assault and Battery, and since it was brought after the expiration of one year, was barred by the Statute of Limitations. The plaintiff contended that automobile collisions on the highway should be treated as Actions of Neg­ligence, and hence should be regarded as within the class which formerly would have been brought in the Form of Action called

03. Revised Code of Delaware (1935).



04. 28 !‘Ll’.ttep. 213 (1051).

TRESPASS ON THE CASE

Trespass on the Case, and, therefore, was not barred, as it fell within the purview of that Section of the Statute of Limitations which prescribed a six year period of limita­tions. The Lower Court held for the defend­ant, but on Appeal, it was held that automo­bile collisions on the highway should be treat­ed as giving rise to a new right of action to be known as an Action of Negligence. As such, it fell within the class which formerly would have been brought in the Form of Action Known as Trespass on the Case, and

hence the six year Statute of Limitations ap­plied.


Thus, from the standpoint of a Federal case, decided in 1939, or a Canadian case, decided in 1951, It clearly appears that the Common Law Action of Trespass on the Case is very much alive under Modern Codes, Practice Acts, and Rules of Court, even though the label, as such, has been removed; and, what is more significant, is showing sufficient strength to create new substantive rights of action.

Sec. 96


205

CHAPTER 9



THE ACTION OF TROVER’
Scope of the Action.

Property Which May be Converted.

Trover—Distinguished from and Concurrent

Form of the Declaration in Trover.

Declaration in Trover—Essential Allegations:

(1) In General.

102. Declaration in Trover—Essential Allegations:

(2) The Plaintifi”s Eight, Title, Interest or Possession.

103. Declaration in Trover—Essential Allegations:

(3) The Defendant’s Wrongful Act of Conversion.

104, Declaration in Trover—Essential Allegations:

(4) The Damages.

105. Status Under Modern Codes, Practice Acts and Rules of Court.

SCOPE OF ThE ACTION

97. The Action of Trover, or Trover and Conversion, lies to recover Damages for the conversion by the defendant to his own use of specific personal property, of which the plain­tiff was entitled to the immediate possession; the object of the action is the recovery of the ‘value of the property as Damages for its con­version; it is not the object of the action to recover Damages for the taking, nor is it the recovery of the property itself.


IN its origin, the Action of Trover, or Trov­er and Conversion, was a Specialized Form of the Action of Trespass on the Case to re­
I. In general, on the history and development of the Action of Trover, see:
TreatIses: 3 )3lackstone, Commentaries on the Laws of England, e. 9, 151, 152 (Philadelphia 1772); Euer, A System of Pleading, e. XIV, 08-71 (Dublin 1791); 2 Saunders, The Law of Pleading and Evidence,

399—402 (24 Am. ed., Philadelphia 1831); 2 Pol­lock and Maitland, History of English Law, The Action of Detinue, Bk. II, c. IV, ~ 7, pp. 171—174 (Cambridge 1805); Martin, Civil Procedure at Com­mon Law, e. XXI, Art. XV, ~ 97-404, 85—92 (St. Paul 1905); 3 Street, Foundations of Legal Liability, C. XIII, The Action of Trover, 159 (Northport, 1906); Ames, Lectures on Legal History, Lecture VU. Tror­or, SO (CambrIdge 1913); Jenks, Short History of

cover Damages against a person who had found goods, and refused to deliver them to the owner, but converted them to his own
English Law, e. X, Detinue, 132—135 (Boston 1913); Barbour, History of Contract in Early English Eouity, c. II, 25 (Orford 1914), in 4 vinogradoff, Oxford Studies in Social and Legal History, Pt. I,

c. II (Osford 1914); Bowers, A Treatise on the Law of Conversion (Boston 1917); Shipman, Hand­book of Common-Law Pleading, c. V, Action of Trover, 95—113 (3d ed, by Ballantine, St. Paul 1923); Morgan, The Study of Law, e. V. Forms of Action, 11 (24 ed. Chicago 1045); Maitland, The Forms of Action at Common Law, c. VI, Trover, 71—72 (Cam­bridge 1948); Plueknctt, A Concise History of the Common Law, Bic. II, Pt. I, c. 1, Trover, 354 (4th ed London 1048); Flfoot, History anti Sources of the Common Law, e. 0, Trover and Conversion, 102 (London 1949).
Articles: Newmark, Conversion by Purchase, 15 Am.L.

11ev. 303 (1881); Ames, History of Trover, 11 Barr,

L.Rev. 277, 374 (1598) reprinted in 3 Essays on

Anglo-American Legal History, 417, 432 (Boston

1909); Salmond, Observations on Trover and Con­version, 21 L.Q.Rev. 43 (1905); Clark, The Test of

ConversIon, 21 Harv,L.Rev. 408 (11907); Aigler,

Rights of Finders, 211 Mieh.L.Bev. 664, 57 Am.L.Ilev.

511 (1923); Moreland, Bights of Finders of Lost

Property, 10 Ky.L.J. 1 (1927); MeClain, Unaatis5ed

Judgments in Trover, 78 13. of Pa.L.liev. 490 (1930);

Warren, Qualifying as Plaintiff in an Action of Con-

See.


97,

98.


99.

100.


1,01,

with Other Actions.



206

ACTION OF TROVER

207


Sec. 98
use.2 As Detinue was subject to the disaci­vantages of Wager of Law and great par­ticularity in the description of the chattel sought to be recovered, Trover, by a fiction of law—that is, by alleging a fictitious loss and finding—at length was allowed against any person who obtained possession of the personal property of another by any means whatever, and sold or used it without the consent of the owner, or refused to deliver it when demanded. The injury lies in the conversion or misappropriation of the goods, which is the gist of the action, and the state­ment of the finding is neither material nor traversable.3
The object of the action is not the recovery of the property itself—that can be recovered only by Detinue or Replevin—but to recover the value of the property. Lord Mansfield, in Humbly v. Trott, said: “Trover is in Form a Tort, but in Substance an Action to Try Prop­erty. . . . An Action of Trover . . -
version, 49 Harv.L.Rev. 1084 (1936); Itiesmas, Pos­session and the Law of Finders, 52 Harv.L.Rev. 1105 (1939); Rubin, Conversion of Choses in Ac­tIon, liD Fordham L.Rev. 415 (1941).
Comments: Trover and Beplevin—Title to Things

Severed from Real Estate by Adverse Possession, 5



Minn.LEev. 155 (1920); Unsatisfied Judgments in

Trover, 3 Yale L.J. 742 (1921); Conversion—Bailee’s

Unauthorized Use of a Bailed Chattel, 21 Cornell L.

Q. 112 (1935).
Annotation: Respective Rights of Carrier, or of One in Similar Relation to Owner, and Finder of Prop­erty Lost or Mislaid, 9 L.R.A. 1388 (1020).
Decision: Dame v. Dame, 43 N.H. 37 (1801).
2. The action was therefore called “Trover” from the French ‘trouver”—meaning to find. See the follow­ing cases: Illinois: Harper v. Scott, 63 lll.Apr.. 401 (1896); New York: Hull v. Soutbwortb, 5 Wend. (N.Y.) 265 (1830).
2. Mills v, Graham, I B. & P. (N.R.) 140, 121 Eng.Rep.

413 (1804); See, also, I Chitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms, a Ii, Of the Forms of ActIon, 104 (16th Am. ed., by Perkins, Springfield 1876); 3 Blaekstone, Commen­taries on the Laws of England, c. IX, Of Injuries to Personal Property, 152 (7th ed,, Oxford 1775); 3 Street, Foundations of Legal Liability, e~ XIII, The Action of Trover, 164 (Northport 1906).

is founded on property.” ~ It is thus a sub­stitute for a property action to recover the possession~ in short it makes the converter a compulsory purchaser.5
In Trespass the plaintiff is compensated by Damages measured by the actual harm done to the goods or chattels or the use lost; in Trover the injured party is compensated by Damages measured by the entire value of the property involved at the time of the conversion.
The manner in which the defendant may have obtained possession of the property is no longer material. The Form of the Action supposes that the possession may have been obtained lawfully, that is, by a bailment or a finding, but it lies as well where the posses­sion was obtained by a Trespass. In such a case, however, the plaintiff, by bringing Trover, waives the Trespass; and no Dam­ages are recoverable for the act of taking; they are recoverable only for the wrongful act of conversion.6
PROPERTY WHICH MAY BE CONVERTED

98. Trover may be maintained for all kinds of personal property, including legal documents, but not where articles are severed from land by an adverse possessor, at least until after tIre land has been recovered, It lies for the misappropriation of specific money, but not for the breach of an obligation to pay where there is no duty to return specific money.
THE Action of Trover is confined to the conversion of personal property. It does not lie, therefore, for the appropriation of fix­tures stiR annexed nor for any injuries to
4. 1 Cowp. 371 at 373, 98 Eng.Rep. 1130 at 1137 (1116).
~. 3 Street, Foundations of Legal LIability, c. XIII, The Action of Trover, 156, 157 (Northport 11906).
6. 1 Chitty, Treatise on Pleading and Parties to Ac­tions, with Precedents and Forms, c. II, Of the Forms of Action, 164, 165 (16th Am, ed., by Perkins, Springfield 1876).
7. Illinois: Lemaa v. Best, 30 Ill.App. 323 (1589);

Massachusetts: Brown v. Wallis, 115 Mass. 156

(1874); Michigan: Creeley -v. Stilson, 27 Mich. 153

(1873); Knowlton v. Johnson, 37 Mich. 47 (1877);



OFFENSIVE PLEADINGS

land or other real property, even by a sever­ance of what properly belongs to the free­hold, unless there has also been an asporta­tion.5 If, however, after trees, earth, miner­als, buildings, or other fixtures have been severed from the freehold, they are carried away, the property is thereby converted into personalty, and Trover will lie It must be


Morrison v. Berry, 42 Mieh. 389, 4 N.W. 731, 36 Am.

Rep. 440 (1880); Bracelin v. MeLaren, 59 Mich. 327,

26 NW. 533 (1886); Pennsylvania: Overton v. Wil­liston, 31 Pa, 155 (1858); Dana v. Baird, 101 Pa.

270 (1882).


S. English: Boraston v. Green, 16 East, 77, 104 Bug. Bep. 1010 (1812); Pennsylvania: Lehr i’. Taylor, 90 Pa. 381 (1879); Cf. Sanderson V. Ilaverstick, 8 Pa. 294 (1848), where It was held that the action would lie for cutting timber without carrying it away,
~ English: Gordon v. Harper, 7 P.R. 13, 101 Eng.

Rep. 828 (170€); Pitt v. Shew, 4 Barn. & Aid. 206,

100 Eng.Rep. 913 (1821); Weeton v. Woodcock, 7

M. & W. 14, 151 Eng.Rep. 659 (1840); Illinois: Altes

v. Hinckler, 36 Ill. 275, 85 Am.Dee. 407 (1804);

Massachusetts: Nelson v. Burt, 15 Mass. 204 (1818);

Michigan: Greeley v. Stilson, 27 Mich. 153 (1873);

New flampshire: Wadleigh v. Jaurrin, 41 N-H.

503, 77 AntDee. 780 (1860).
Where growing corn or any other crop is cut and car­ned away and converted, Trover will lie. Illinois:

Simicins v. Rogers, 15 Ill. 397 (1854); Altes V. Hinekler, 36 111. 275, 85 Am.Dec. 401 (1864); Michi­gan: weldon v. Lytle, 53 Mieh. 1, 18 N.W. 533 (1884).


So, also, where trees have been cut and carried away

and made into charcoal, or otherwise converted.

Alabama: Riddle v. Driver, 12 Ala. 590 (1847);

Maine: Whidden V. Seeiye, 40 Me. 247, 63 Am.Dec.

061 (1855); Michigan: Final v. Back-us, 18 Mich.

218 (1869); Greeley v. Stilson, 27 Mich. 153 (1878);

New York: Mooers v. Wait, 3 Wend. (N.Y.) 104, 20

Am.Dee. 667 (1829).

Or where mineral or earth or manure is dug and taken away. English: Higgon v. MortIrner, 6 Car. &P. 616, 172 Eng.Rep. 1389 (1833); Massachusetts: Riley

v. Boston Water Power Co., 11 Cush. (Mass.) 11 (1853); Daniels v. Pond, 21 Pick. (Massj 367, 32 Am.Dee. 260 (1838); New York: Goodrich v. Jones, 2 Hill (N.Y.) 142 (1841); Pennsylvania: Forsyth v. Wells, 41 Pa. 291, 80 Am.Dec. 617 (1801).


Growing grain eaten by trespassing cattle cannot be said to have been converted by the owner of the cattle. The remedy is Trespass. Smith v. Archer, 53 Iii. 241 (1870).
And as to manure, see tho following eases: Massachu­setts: Anderson v. Todesco, 214 Mass. 102, 100 N.E. 1068 (1913); New Hampshire: Pinkham v. Gear, 3

remembered that not everything that is fast­ened to real property thereby becomes real.1° A building erected under an agreement that it shall remain personal property, remains so, and Trover will lie for its conversion.” So, as between landlord and tenant, mortgagor and mortgagee, vendor and purchaser, etc., property may remain personal though annex­ed to the freehold, and if it is personal, Trover is the proper remedy for ts conversion.’t
It may be stated here that the action does not lie for stone or gravel dug from land or crops or other articles severed, where the

defendant has the actual adverse possession of the land, and claims title to it,” The own­er must resort to his remedy for the recovery of the land itselt Some cases allow the Per­sonal Actions for things severed after the


N.E. 484 (1826); New York: Middlcbrook v. Ccc-win, 15 Wend. (N.Y.) 169 (1856).
10. Where machinery is sold to be set up in a mill, but with a stipulation that title shall not pass un­til it is paid for, and without the vendor’s knowl­edge it is so attached to the realty as to ma&e it, under ordinary circumstances, a fixture, and before It is paid for the property is sold to someone with notice of the vendor’s claim, Trover will lie for the conversion of the machinery. Ingersoll v. Barnes, 47 Mich. 104, 10 NW. 127 (1881).
11. Illinois: Davis v. Taylor, 41 III. 405 (1866);

Maine: Pullen v. Bell, 40 Me. 314 (2855); Massa­chusetts: Ilinckley v. Baxter, 13 Allen (Mass.) 139 (1866); New York: Smith v. Benson, I Hill (N.Y.) 176 (1841).


12. English: Elwes v. Maw, 3 East 38 at 53, 102 Eng. Rep. 510 at 510 (1802); Davis v. Jones, 2 Barn. & AId. 165, 106 Eng.Rep, 327 (1818).
Where the landlord takes possession before the end of the term, without the tenant’s consent, and pre­vents him from removing his personal property, the tenant can maintain Tro-ver, though the property is attached to the realty. Watts v. Lehman, 107 Pa. 106 (1884).
13. Arkansas: Bethea v, Jeftres, 126 Ark. 194, 189 3.

W. 666, L.R.A.1918A, 549 (1918); Massachusetts:

Arizona Commercial Mining Co. v. Iron Cap Copper

Co., 286 Mass. 185, 128 N.E. 4 (1920); Pennsylvania:

Mather v. Ministers of Trinity Church, 3 Serg. & E.

(Pa.) 509, 8 Am.Dee, 603 (1817).

See, also, Note: Trover and Replevln—Title to Things Severed from Real Estate by Adverse Possessor, ~ Minn.L.Rey. 155 (1921).

208

CIt 9


Sec. 99

ACTION OF TROVER

209


recovery of possession of the land, but the normal remedy after Ejectment is a claim for Damages by way of Mesne Profits.
It is also necessary, in order to maintain this action, that the plaintiff shall have the right to some specific property. The action will lie for so many pieces of money taken and converted by the defendant,’4 but it will not lie for money had and received general-

The fact that the plaintiff’s interest in the property is in common will not defeat the



action. It will lie for an undivided interest

in a specific chattel or in a mass.’°


The conversion of any specific personal property of any sort whatever will give rise to an Action of Trover’7 It will lie for the

conversion of any valuable paper, as an in­surance policy, promissory notes, bonds, cer­tificates of stock, title deeds, copies of rec­ords, etc.’8


14. Jackson v. Anderson, 4 Taunt. 24, 128 Eng.Rep.

235 (1811). See, also, 1 Chitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms, c, II Of the Forms of Action, 166 (16th Am. NI,, by Perkins, Springfield 1876); Bowers, A Treatise on the Law of Conversion, c. III, § 16 (Boston 1917).


1~. English: Orton v. Butler, 5 Barn. & Aid. 652, 106 Eng.Rep. 1329 (1822); Rhode Island: Royce v. Oakes, 20 Ri. 252, 38 A. 371 (1897).
16. English: Watson v. King, 4 Camp. 272, 171 Eng. Rep. 87 (1815); Illinois: German Nat. Bank of Chi­cago v. Meadowcroft, 4 1Il.App. 630 (1879); German Nat Bank of Chicago v. Meadowcroft, 95 Ill. 124, 35 Am.Rep, 137 (1880).
17. For example, animals ferae naturae converted aft­er being tamed or killed. Amory v. Flyn, 10 Johns. (N.Y.) 102, 6 Am.Dec. 316 (1813).
18. 1 Chitty, Treatise on Pleading and Parties to Ac­tions, with Precedents and Forms, c. II Of the

Forms of Action, 167 (16th Am. ed., by Perkins,

Springfield 1876); Atkinson v. Baker, 4 T.R. 229,

100 Eng.Rep. 989 (1791); Illinois: Chickering ‘vc

Baymond, 15 Ill. 362 (1854); Hayes v, Massachu­setts Mut. Life Ins. Co., 125 III. 626, 18 N.E. 322, 1

L.R.A. 303 (1888); Michigan: Rose v. LewIs, 10

Mich. 483 (1862); Morton v. Preston, 18 Mich. 60,

100 Am.Dec. 146 (1869); Barnum v. Stone, 27 Mieh.

332 (1873); Hicks v. Lyle, 46 Mieh. 488, 9 NW. 529

(1881); Daggett v. Davis, 53 MIch, 35, 18 N.W, 548,

TROVER—TJISTINGUISIIED FROM AND

CONCURRENT WITH OTHER

ACTIONS

99. fly the successive extensions over a peri­od of time of the action of Trover, by the close of the Eighteenth Century it had become a



concurrent remedy with Detinue, Replevin and Trespass de Bonis Asportatis. Each of these remedies had their own peculiar characteristics and Trover was not completely coextensive with them.
THE Action of Detinue, in its broadest scope, and the Action of Trespass failed to adequately protect the rights of owners in their chattels. Thus, if a bailee or other per­son in possession misused the goods of the bailor in such a way as to impair their value, and thereafter, at the request of the bailor, surrendered them, the only remedy available to the bailor was an Action on the Case, if he desired to recover full Damages.’° Of course, if, after diminishing the value of the chattels, the bailee still refused to deliver them upon the demand of the owner, Detinue was available, in which the owner might recover the chattels or their value, with Damages for the unlawful detention. But if the defendant saw fit to restore the chattels under the judgment and the owner wished to recover Damages for the injury or di­minished value of the chattels, he was forced to bring Case. By bringing Case in the first instance, the owner was able to avoid a mul­tiplicity of actions.2° Originally, where the chattel bailed found its way from the bailee
51 Am.Rep. 91 (1884); Brown v. St. Charles, 66

Mich. 71, 32 NW. 926 (1886); Pennsylvania: Lewis

v. Shortledge, I WIdy.Notcs Cas. (Pa.) 507 (1867). As to conversion of records, see Inhabitants of First

Parish in Sudbury v. Stearns, 21 Pick. (Mass.) 148. Contra, as to shares of bank stock, as contrasted with the certificates of stock. Sewall v. Lancaster Bank, 17 Serg. & H, (Pa.) 285 (1828); Neiler v. Kel­ley, 69 Pa. 403 (1871).


10. Such an action was, according to Dean James Barr Ames, taken for granted as early as 1461. Y. B. 33 Hen. VI, f. 44, p1. 7.
20. Ames, Lectures on Legal History, Lecture VII, Trover, 84 (Cambridge 1913).
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