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210

OFFENSIVE PLEADINGS

Ch. 9


into the hands of a third party and was de­stroyed, the bailor, it was said, could not re­cover in Detinue, as it was regarded as im­possible to show a detention where the goods had been previously destroyed. Whatever doubt prevailed on the point as to whether Case would lie in favor of the owner in this situation was ultimately resolved in favor of permitting the action.2’ It having now been held that Case would lie against any posses­sor for misusing the goods, and any possessor other than a bailee for the destruction of the goods, it was bound to follow that such an action would be permitted against a bailee who destroyed the goods, which occurred in a case decided in 1479.22 In a case decided in 1510 23 it was held that a wrongful sale by a bailee would amount to a conversion, and in Vancirinic v. Archer,23 the same effect was given to a sale by a finder, as a result of which Trover became established as a con­current remedy with Detinue in those cases involving a misfeasance.
The next step was for Trover to become

concurrent with Trespass. Basset v. RIay­nard 25 held in the year 1601 that Trover would lie for a wrongful taking, and in 1604, in the case of Bishop v. Montague,28 it was held that the plaintiff might elect between


2’. I.E. 12 Edw. iv, f. 13, p1. 9 (1472).
22. I.E. 18 Edw. IV, I, 28, p1. 5. Dean Ames stntes that this “is noteworthy as being the earliest re­ported case in which a defendant was charged with ‘converting to his own use’ the plaintiff’s goods,” Lectrnts on Legal History, Lecture VII, Trover, 84, 85 (Cambridge 1913).
23. Keil, 160, p1. 2, 72 EngSep. 334 (1510).
24- 1 Leo, 221, 74 Eng,flep. 208.
25. Crotlis. 819, 78 Eng.Bcp. 1046.
26. Cro.Eliz, 824, 72 Eng.Rep. 1051. For later cases on the same point, see Leserson v. Kirk, 1 BoNe, Abridgment, 105 (M) 10 (1610); Klnaston v. Moore, Cro.Car. 89, 79 Eng.ltep. 678 (1627), In which the Justices and Barons declared that “although he took it ~ ~ trespass, yet the other may charge him in Sn AcUrni upon the case In Trover If he will.”

Trover or Trespass. And in 1596, in the case of Eason v. I’1ewman,~ Trover was permitted against a finder, even though the original taking was not adverse, on the ground of re­fusal to surrender the goods on demand of the owner, it having been earlier held that Tres­pass could be maintained as the taker was a trespasser ab initlo. Ames suggests, how­ever, that the action was allowed as a sub­stitute for Trespass, and not as an alternative of Detinue, a conclusion based on the fact that for many years thereafter Prover was not permitted against a bailee who refused to deliver the chattel to the bailor upon request. But after various negative holdings, in 1675, it was held that Trover was available against the bailee on mere demand and denial.28 Under the foregoing decisions, Trover be­came a concurrent remedy with Detinue, except where the bailee was unable to de­liver the goods as they had been negligently lost; in such a case the bailee was liable in Assumpsit. The net result, therefore, was that Trover, not being subject to Wager of Law, was substituted in lieu of Detinue, until after the early part of the Nineteenth Cen­tury. One further conquest remained to be made, although Trover had now been extend­ed to cover the Field of Both Detinue and Trespass. After Trespass became concurrent with Replevin, which lay for a wrongful dis­tress, Prover followed suit and also became available on the theory that a wrongful dis­tress constituted a conversion.29


Thus, Trover had finally emerged as a remedy concurrent with Detinue, Replevin

and Trespass, and supplemented by Case and Assumpsit.


27. Cro.Eliz. 495, 78 Eng.Eep. 745 (1596).
28. Ames, Lectures on Legal Elstory, Lecture VII, Tro’ver, 85, 88 (Cambridge, 1913); Sykes v. Walls, 3 Keb. 282, 84 Eng.Bep. 722 (1675).
20. Tinkler t Poole, 5 Burr. 2657’, 98 Eng.Eep. 396 (1770).

Sec. 101


ACTION OF TROVER

211


FORM OF TUE DECLARATION IN TROVER

100. As the Action of Prover was an off­shoot of the Action of Trespass on the Case the Form of the Action in some respects follows the Form of Case. The Form of the Original Writ and so also the Early Forms of the Dec­laration contained a statement that the defend­ant had acted to deceive and defraud the plain­tiff. The statement as to the Loss and Finding ultimately became immaterial when Trover was extended to cover any wrongful taking, and thereafter was dropped.

DECLARATION IN TaovER
(Alleging Loss and Finding)
EDWARD TUE ThIRD, by the grace of God, of the United Kingdom of Great Brit­ain and Ireland, King, Defender of the Faith

To the Sheriff of County,

GREETING:

COMMENCEMENT. Recital of Writ.

Middlesex, to wit [venue] - D. D. was attach­ed to answer P. P. of a plea of trespass on the case;
Queritur. and thereupon the said P. P., by J. H. his attorney, complains:
BODY. INDUCEMENT. Possession. For that, whereas, the said P. P. heretofore, to wit, on the first day of May in the year 1800, at Westminster in the county aforesaid, was lawfully possessed, as of his own property, of certain goods and chattels, to wit, ten tables and ten chairs, of great value, to wit, of the value of ten pounds of lawful money of Great Britain;
Loss. And being so possessed thereof, the said P. P. afterwards, to wit, on the day and year aforesaid, at Westminster aforesaid, casually lost the said goods and chattels out of his possession;
Finding, and the same afterwazt, to wit, on the day and year aforesaid at the place

aforesaid, came to the possession of the said t). I). by finding;


GRAVAMEN. Conversion. Yet the said Ii D., well knowing the said goods and chat­tels to be the property of the said P. p. [and of right to belong and appertain to him, but contriving and fraudulently intending craft­ily and subtilly to deceive and defraud the said P. P. in his behalf,] hath not as yet de­livered the said goods and chattels or any part thereof to the said P. P., although often requested to do so, but so to do hath hitherto wholly refused, and still refuses; and after­ward, to wit, on the day and at the place aforesaid, converted and disposed of the said goods and chattels to his, the said D. D.’s, own use;
CONCLUSION. Ad Damnum. to the damage of the said P. P. of [in the sum of]

£10;
Production of Suit, and therefore he brings his suit [inde producit sectam.]


STEPHEN, A Treatise on the Principles of Pleading in Civil Actions, 73 (3d Am. ed. by Tyler, Washington, DC.1892); KEIG­WIN, Cases in Common Law Pleading, 180 (2d ed., Rochester 1934).
DECLARATION IN TROVER—ESSENTIAL

ALLEGATIONS: (1) IN GENERAL

101. The Essential Allegations of the Dec­laration in Trover are:

(I) The plaintiff’s Possession or Right of Immediate Possession of certain goods, with description; the de­scription of the property converted and the plaintiff’s right thereto, must be sufficient for purposes of identification, but the plaintiff’s property or right may be stated generally;



(II) The Conversion, including in some cases Demand and Refusal;

(III) The Value of the Goods and Damages

by their Conversion.



OFFENSIVE PLEADINGS

DECLARATION IN TROVER—ESSENTIAL

ALLEGATIONS~ (2) TUE PLAINTIFF’S

RIGHT, TITLE, INTEREST OR POSSES­

SION


192. The plaintiff must have the Eight to the Immediate Possession. A defrauded seller may regain his Right of Possession by elec­tion to rescind the sale. The Right of Posses­sion may arise front a bailment or from bare possession itself. A mere servant has custody, not possession. The Right of Possession is sometimes spoken of as Constructive Posses­sion.

Title and Possession to Support Ti-over

IN order to maintain this Form of Action, it is commonly said that the plaintiff must, at the time of the conversion, have had a Property, either General or Special, in the chattel, and also the actual possession, or the right to the immediate possession.3° “Spe­cial Property” may arise from a bailment or even from bare possession. The immediate right of possession as against the wrongdoer is all the property right necessary.


It is sufficient that the plaintiff at the time of the conversion had the right to immediate possession, arising either from the actual possession or from title of any sort.3
30. Illinois: Bisendrath v. Knauer, 434 111. 300 (1872);

Michigan: Warren cc Dwger, 91 MIch. 414, 51 NW.

1062 (1892); New Hampshire: Poole v. Symonds, I

NIl. 289, 8 Am.Dec. 71 (1818); vermont: Swift v.

Moseley, 10 Vt. 208, 33 Am.Dee. 197 (1838).
And see, Baals v. Stewart, 101) lad. 371, 9 N.E. 403 (1831), as to the statement under the Indiana Code. See, also, 21 Eney.Pl. & Prae. 1063 (Northport 1895— 1902); Bowers, A Treatise on the Law of Conver­sion, c. IX, §1 490—492 (Boston 1917).
In an action for conversion, the plaintiff must allege that he was in possession or entitled to possession of the property at the time of tim alleged eonver­non.
31. English: Bloxam v. Sanders, 4 Barn. & Cress. 941,

107 Eng.Rep, 1309 (1825); Alabama: Glaze v, Mc­Million, 7 Port. (Ala.) 270 (1828); Illinois; Chicker­big V. Raymond, 15 IlL 362 (1854); lMvidson v, Waldron, 31 Ill. 120, 83 Am.Dec. 200 (1863); Owens V. Weedinan, 82 Ill. 409 (1876); Indiana: Traylor v. Horrall, 4 Blackf. (Tad.) 317 (1837); Barton v, Dun-fling, 6 Black?. (In&) 209 (1842); MIchigan: Ste­

If goods are obtained by fraud, the vendor may avoid the sale, and bring Trover against the vendee, at least after a demand and re­fusal to return the goods, and, by the weight of authority, without a previous demand.1t It must be borne in mind, however, that if the contract is affirmed, with knowledge of the fraud, by bringing assumpsit or other­wise, the property passes irrevocably, and therefore Trover will not lie.33
phenson v. Little, 10 Mieh. 433 (1862) Rubble v. Lawrence, 51 Mieb. 569, 17 NW. 60 (1883); Hanee v. Tittabawassee Boom Co., 70 Mieli. 227, 38 NW. 228 (1888); New Jersey: Debow V. Coil ax, 10 N.j. L. 128 (1828); New York: Hotehkiss v. MeVicar, 12 Johns. (N.Y.) 403 (1815); North Carolina: Lewis v. Mobley, 20 Nc. 407, 34 Am.Dec. 379 (1839); Penn­sylvania: Caster v. MeShaff cry, 48 Pa. 437 (1865);

Tennessee: Caldwell v. Cowan, 9 Yerg. (Team) 262 (1836).

An equitable right will not support the action. North­ern Pac. B. Co. v. Paine, 119 U.S. 561, 7 S.Ct. 323, 30 LEd. 513 (1887).
A statute giving the lessor a lien on crops grown on the demised land does not vest him with such title thereto as to enable bin to bring Trover for the crops against a purchaser from the tenant. Prink v. Pratt, 130 IU. 327, 22 N.E. 819 (1889).
And that a mere lien without possession is not enough, see the following eases: Alabama: Street v, Nel­son, 80 Ala. 230 (1885); Delaware: Stewart v. Bright, 6 Houst. (Del.) 344 (1881); New York: Dee­Icy v. Dwight, 132 N.Y. 59, 30 N.E. 258, 18 L.RA. 298 (1892); Rhode Island: Rexroth V. Coon, 15 n.J.

35, 23 AtI. 37, 2 Ain.St.Bep. 863 (1885). See, also, 38 Cye. 2050.


at Englisl~: Ferguson v. Carrington, 0 Barn. & Cress.
59, 109 Eng.Rep. 22 (1829); Noble y. Adams, 7

Taunt. 59, 129 Eng.Rep. 24 (1816); Illinois: Eruner



V. Dyball, 42 Ill. 34 (1866); Ryan v. Brant, 42 III.

78 (1866); Maine: Atlas Shoe Co. V. Bechard, 102

Me. 197, 66 AtI. 890, 10 L.ThA. (N.S.) 245 (1906);

Massachusetts: Thurston v. flIanchard, 22 Pick,

(Mass.) 18, 33 Am,Dee, 700 (1839); Stevens v. Aus­tin, 1 Mete. (Mass.) 557 (1840); Michigan: Beebe v­Knapp, 28 Mich. 53 (1873); Heineman v. Steiger, 34

Mich. 232, it) N.W. 965 (1884); New York: Green



V. Russell, 5 Hill, (N.Y.) 183 (1843); Woodworth v.

Kissam, 15 lohns. (N.Y.) 186 (1817); Hitchcock v.

CoviU, 20 Wend. (N.Y,) 167 (1838); Pennsylvania:

Pulton v. WIjalley, 8 Wlsly.Notes Cat (Pa.) 106

(1846).
3~’ Kimball v, Cunningham, 4 Mass. 502, 3 Am,Dec.

230 (1880); Peters v. Ballistier, 3 Pick. (Mass.) 405 (1826).

212

Cli. 9


Sec. 102

ACTION OF TROVER

213

A bailee or any person in possession of goods may maintain Trover against a stran­ger who takes them out of his possession)4 The action will therefore lie by an officer who had the possession of, and a special prop­erty in, the goods by virtue of an Execution or Writ of Attachment; ~ or by a carrier,38 a warehouseman,37 a consignee,38 a gratui­tous bailee,3° or by any agent who is respon­sible over to his principal.40


The finder of goods has a Special Proper­ty in them which will enable him to maintain Trover against any one but the true owner.4
34- Burk v. Webb, 32 Web. 173 (1875); Grove v. Wise, 39 Mich. 161 (1878).
-35. English: Wilbraham v. Snow, 2 Wms.Saund. 47, 85 Eng.Rep. 624 (1609); Blades v. Arundale, 1 M. &

5. 711, 105 Engtep. 265 (1813); Massachusetts:

Brownell v. Manchester, 1 Pick. (Mass.) 232 (1822); Caldwell v. Eaton, 5 Mass. 399 (1809); Badlam V. Tucker, 1 rick. (Mass.) 389, 11 Am.Dee. 202 (1823);

Michigan: Burk V. Webb, 32 Much. 173 (1875); Witherspoon V. Clegg, 42 Much. 484, 4 N.W. 209 (1880); New Rampsbire: Poole v. Symonds, 1 N. II. 289, 8 Am.Dec. 71 (1818); New York: Dillen­back v. Jerome, 7 Cow. (N.Y.) 297 (1827); Barker v. Miller, 6 Johns. (N.Y.) 195 (1810); Pennsylvania:

Weidensaul v. Reynolds, 49 Pa. 73 (1865); Vermont:

flayer v. Hutchinson, 13 Vt. 504, 37 Am.Dec. 007 (1841).


36. 1 RoBe, Abridgment, 4 (London 1668). see, also, the following cases: English: Arnold v. Jefferson, 1 Ld.Raym. 276, 91 Eng.Rep. 1080 (1697).
~7- Marthil v. Coles, 1 M. & S. 147, 105 Eng.Rep. 58 (1813).
38. Smith v. James, 7 Cow. (N.Y.) 329 (1827); Everett V. Saltus, 15 Wend. (N.Y.) 474 (1826).
30. English: Booth v. Wilson, 1 Barn. & AId. 59, 106 Eng.Rep. 22 (1817); New York: Faulkner v. Brown, 13 Wend. (N.Y.) 63 (1834).
40. Wilbraham v. Snow, 2 Wms,Saund. 47(b), 85 Eng.

Rep. 624 (1669). See, also, the followung eases:

English: Stirling v. Vaughan, 11 East 019, 626, 103

Eng.Bep. 1145, 1148 (1809); fllinols: Eisendrath V.

Knauer, 64 Ill. 396 (1872); Massachusetts: Eaton

V. Lynde, 15 Mass. 242 (1818); Pennsylvania: Tro­rub v. Tilford, 6 Watts (Pa.) 472, 31 Am.Dec. 484

(1837).
41. Delaware: Clark v. Maloney, 3 Bar. (Del.) 68 (1839); New York: McLaughlIn v. WaIte, 9 Cow (N.Y) 670 (1827).

Bare possession, even though wrongfully ob­tained, gives the possessor sufficient proper­ty to maintain the action against a mere stranger.42
The rule by which a bailee, finder, or wrong­ful possessor is permitted to sue and recover Damages which he has not sustained, and by such recovery bar a subsequent action by the bailor for an injury to his general property without his consent, is criticized as unsound by certain authorities.43 It is suggested that the General Owner and the one having a spe­cial property should each bring an action for the actual loss or damage to his own particu­lar interest. This might well be the rule where the person in possession does not claim complete Title, or where the General Owner does not consent to his recovering the total loss. Indeed, it is recognized that the mere naked bailee, at the will of the bailor, cannot recover against a third person for the conversion of the bailed property, where the bailor or owner has intervened and asserted his general property. It is otherwise in the case of a bailee with the right of possession for a specific time and purpose, who has the
42. Indiana: Coffin v. Anderson, 4 Blaekf. (md.) 410

(1837); Maine: Vining v, Baker, 53 Mc. 544 (1866);

Massachusetts: Allen v. Smith, 10 Mass. 308 (1813);

Fairbank v. Phelps, 22 Pick. (Mass.) 535 (1839);

Michigan: CulIen v. O’Hara, 4 Mich. 132 (1856);

North Carolina: Barwick v. Barwiek, 33 N.e. 80

(1550); New York: Duncan v. Spear, 11 Wend. (N.

t) 54 (1833); Faulkner v. Brown, 13 Wend. (N.Y.)

63 (1834); Pennsylvania: Gunzhurgor v. Rosenthal,

226 Pa. 300, 75 AtI. 418, 26 LEA. (N.S.) 840, 18 Am.

Gas. 572 (1910); Vermont: Knapp v. Winchester, 11

Vt. 351 (1839).
43. See Note: Damages for Injury to Chattels Re­coverable by Person Having Possessory Interest Only. 25 Han’.L.Rev. 655 (1912), criticizing the case of The Winkfield [19021 p. 42 in which the court es­tablished the doctrine of Modern Damage Law, that a bailee may recover the whole damage done to a bailed chattel by a wrongdoer, though the ballee would not be liable to the baulor for such wrongful act. See, also, 2 Beven, Negligence in Law, e. IV, 736, 737, note (3d ed., London 1908); Clerk & Lindsell, Law of Torts, c. VII, 262, 282 (3d ed., London 1904).

214


OFFENSIVE PLEADINGS

Ch. 9

right to recover to the extent of the value of his special interest in the property, even where the general owner intervenes.44 It does seem strange that a bailee is entitled to recover for the entire Damage done to prop­erty by its injury, loss or misappropriation, while a joint owner of personal property, who sues without joining the other co-own­ers, is entitled to recover only his own Dam­age. But it is generally recognized that “the peace and order of society require that per­Sons in possession of property, even without Title, should be enabled to protect such pos­session by appropriate remedies against mere naked wrongdoer&4~” Thus the United States Government, in carrying on the post office, is bailee of the letters and their con­tents for hire, and has sufficient interest to maintain an Action of Trespass or Trover against a thief or wrongdoer for disturbing that possession, like any other bailee, and may recover the entire value of the prop­erty.4°
A person having a special property in goods, and being entitled to the possession as against the general owner, as in the case of a pledgee for value, a chattel mortgagee after condition broken, or a bailee having a lien, may maintain Trover even against the General Owner, or against one who has con­verted the goods by authority of, or on Proc­ess against, the General Owner.41
44- Engel v. Scott & Hobston Lumber Co,, 60 Minn.

39, 61 NW. 825 (1895).


45- Guttner v. Pacific Steam Whaling Co., 06 Fed. 617 (1800); Note: Damages—Gratuitous Bailment— Prover, 13 Barv.L.Rov. 411 (1000).
National Surety Co. v. United States, 129 Fed. 70 (1904).
47- EnglIsh: Roberts v. Wyatt, 2 Taunt. 268, 127 Eng, Rep. 1080 (1810); Illinois: Hutton v. Arnett, 51 Dl. 108 (1869); Indiana: M’Connell v. Maxwell, 3 fflackf. (lad.) 419 (1839); Massachusetts: Eaton v. Lynde, 15 Mass. 242 (1818); Crocker v. Atwood, 144 Mass. 588, 12 N.E. 421 (1887); New York: Ingersoll v. Van Bokkelin, 7 Cow. (N.Y.) 610 (1827); Moore V. flitcheock, 4 Wentt (N.Y.) 292 (1830); Duncan v. Spear, 11 %Vend. (N.Y.) 54 (1833); Daniels v. Ball,

A mere servant, however, acting profess­edly as such, and having only the custody of the goods, cannot maintain the action, but, if brought at all, it must be brought by the master.48


Constructive Possession or Right to Posses­sion;

IN order to maintain Trover, the plaintiff must have had possession, or the right to im­mediate possession, at the time of the con­version.4° One is said to have constructive possession when he is given the same rights and remedies as if he were In actual posses­sion. This may be the case of an owner when no one is in actual possession, or when some bailee at will is in possession subject to his orders.


Where the property was, at the time of the conversion, in the hands of a bailee at will, Trover may, in most cases, be maintained
11 Wend. (NX.) 57, note (1833); Faulkncr v, Brown,

13 Wend. (N.Y.) 63 (1834).


48. English: Eloss V. Bolinan, Owen 52, 74 Eng.Rep,

893 (1586); Illinois: Cooper V. Cooper, 132 Ill. 80,

23 N.E. 246 (1800); Pease v. Ditto, 189 III. 456, 50

N.E. 953 (1001); Massachusetts: Ludden V. Leavitt,



9 Mass. 104, 6 AnrDec. 45 (1812); New York: Dii­lenback v. Jerome, 7 Cow. (WY.) 294 (1827); Faulk­ner v. Brown, 13 Wend. (N.Y.) 63 (1834)
40. English: Gordon v. Harper, 7 T.E. 9, 101 Eng.

flop. 828 (1796); Bloxam v. Sanders, 4 Earn. & C.

941, 107 Fng.Rep. 1300 (1825); Ball v. Piekard, 3

Camp. 187, 170 Eng.Rep. 1350 (1812); Benjamin v.

Bank of England, 3 Camp. 417, 170 Eng.Rep, 1420

(1813); Illinois: Chiekerung v. Raymond, 15 III. 362

(1854); Eisendh-ath v. Knauer, 64 12. 396 (1892);

ri-ink v. Pratt, 130 III. 327, 22 N.E. 819 (1889);

Massachusetts: Winship v. Neale, 10 Gray (Mass.)

382 (1858); Michigan: Axford v. Mathews, 43 Much.

327, 5 N.W. 377, 38 Am.Rep. 185 (1880); Foster v.

Lumbermen’s Mm. Co., 68 Mich, 188, 36 NW. 171

(1888); New Hampshire: Clark v. Draper, 19 N.H.

419 (1849); New York: Ban V. Daggett, S Cow. (N.

1.) 053 (1527); Bush v. Lyon, 9 Cow. (N.Y.) 52

(1828).
The right to possession must have been inunediate, absolute and unconditional, and not dependent on some act to be done by the plaintiff. It is not enough that the plaintiff had a good right of action, or a right to take possession at some future day. Frink V. Pratt, 130 Ill. 327, 22 N.E. 819 (1889).



Sec. 102

ACTION OF TROVER

21 S


either by the General or the Special Owner— that is, by the bailor or bailee—though a Judgment obtained by one of them will be a Bar to an action by the other~° But this is not the case where the bailee has the exclu­sive right of possession as against the baflor.

Therefore, where goods leased as furniture with a house were taken in Execution against a former owner, and sold by the sheriff, it was held that the landlord could not main­tain Trover against the sheriff pending the lease, but should have brought an Action on the Case, as the right of possession was in the tenant5A landlord, however, generally has such a right of possession of timber wrongfully cut down during the lease as to enable him to maintain Trover if it is re­moved.53


The person who has the absolute or gen­eral property in goods may maintain Trover, though he has never had the actual posses­sion, provided he had the right to immediate possession. The general ownership with the right to possession creates a constructive possession.53 Thus, where a person has de­
50. Illinois: Gauche v. Mayer, 27 III. 134 (1862), in­volving trespass; Lantz v. Drum, 44 Ill.App. 607

(1592); New York: Smith v. James, 7 Cow. (N.Y.)

328 (1827).
61. English: Gordon v, Harper, 7 TB. 9, 101 Eng.

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