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Rep. 828 (1796); Hail ‘r. Pickard, 3 Camp. 187, 170 Eng. 1350 (1812); Alabama: Natioas v. Hawkins’ Adm’rs, 11 Ala. 859 (1847); Illinois: Forth -v. Furs-icy, 82 Iii. 152 (1876); Massachusetts: Wheeler v. Train, 3 Pick. (Mass.) 255 (1825); Fairbank V. Phe]ps, 22 Pick, (Massj 535 (1839); Tennessee:

Caldwell v. Cowan, 9 Yerg. (Tenu.) 262 (1836); ver­mont: Swift v, 3foseley, 10 Vt. 208, 33 AntDec. 107 (1838).


62. English: Gordon v. Harper, 7 T.R. 13, 101 Eng.

Rep. 828 (1796); Pennsylvania: Baker v. Howell, C

Serg. & B. (Pa.) 476 (1821); Shult v. Barker, 12

Serg. & H. (Pa.) 272 (1824).
53’ Wimraham V. Snow, 2 Win’s Sauad. 47a, Dote (1),

85 EngRep. 625 (1669); Bacon, Abridgment, e.

“Trover” (Philadelphia 1868); English: Gordon v.

Harper, 7 TB. 12, 101 Eng.Rep, 828 (1796); Maine:

MeNear v. Atwood, 17 Me. 484 (1840); New York:

Smith v. James, 7 Cow. (N.Y.) 329 (1827).

liverS goods to a carrier or other bailee, who has not the right to withhold the pos­session from the General Owner, he may maintain Trover for conversion by a stran­ger, for the owner has the constructive pos­session.M So an executor or administrator has constructive possession of the goods of his testator or intestate from the time of his death; ~ a trustee of goods has constructive possession, though they are in the actual possession of the cestui que trust; a con­signee of goods, who is also the vendee, may bring Trover for their conversion after their delivery to the carrier, arid before he has ac­quired actual possession; 5~ and the vendee of goods, where the property in them has passed, may maintain the action for their conversion before they left the actual posses­sion of the vendor.58
If the bailee of goods, having the right to their possession, as against the bailor, so that the bailor could not in general maintain Trover for their conversion, so deals with

them as to terminate the bailment, the bailor

acquires constructive possession, and for their subsequent conversion he may main­tain Trover. Thus, where the owner of cat­tle leased them, with a farm, for four years,


54. English; Gordon V. Harper, 7 T.R. 12, 101 Eng.

Rep. 828 (1796); Dewell v. Moan, I Taunt. 391, 127

Eng.Rep. 885 (1808); Illinois: Montgomery v.

Brush, 121 III. 513, 13 N.E. 230 (1887); New York:

Thorp v. Burling, 11 Johns, (N.Y.) 285 (1814).
55- English: Gordon v. Harper, 7 T.R. 13, 101 Fag. Rep. 828 (1796); Massachusetts: Towle v, Lovet, 6 Mass. 394 (1810); Michigan: Rogers v. Windoes, 42 Mich. 628, 12 N.W. 882 (1882); New flampshire:

Preach v. Merrill, 6 N.H. 465 (1833); South Cai-o­ilna: Kerby v. Quinn, Rice (S.C.) 264 (1839); Hill v. Brennan, Rice (S.C.) 285 (1839).


St ‘Wooderman v. Baldoek, 8 Taunt. 676, 129 Eng. Rep. 547 (1819).
6’s. 1 Chitty, Treatise on Pleading and Parties to Ac­tions, with Precedents and Forms, e. II Of the Forms of Action, 171 (16th Am. ed., by Perkins, Springfield 1876).
88. Bugg v. Minett, 11 East. 210, 103 Eng.Eep. 085 (1809).

216

OFFENSIVE PLEADINGS

Cli. 9


under an agreement by which the lessee might return or purchase them at the end of the term, and before the term had expired the lessee sold them, it was held that the sale terminated the lessee’s right to posses­sion, and gave the lessor constructive pos­session, and that the lessor could maintain Trover against both the lessee and his yen-dee59
A bailor may maintain an action of trover against the bailee, if by wrongful use or dis­posal of the goods the bailee has repudiated his obligations, and thereby enabled the bail-or to exercise the rights and remedies of a person entitled to possession. If a bailee misappropriates the property, as by selling or pledging it as his own, the bailor may im­mediately Elect to treat the bailment as end­ed and bring trover for its Value, or he may Elect to treat the bailment as continuing and sue for Damages. A bailee, if he has any right of enjoyment or use, must use the thing in moderation, and not exceed the lim­its of the bailment. If his acts imply an as­sertion of Title or right of dominion incon­sistent with the bailor’s ownership, this is a conversion of the property. Mere misuse, or unauthorized use of the thing bailed with­out adverse claim, or negligent loss, may only amount to a breach of obligation, or a tort in the Nature of Waste, falling short of conversion.
Title in a Third Partij as a Defence

IN Trespass and Trover at Common Law there was some difficulty as to whether Title in a Third Party was a good Defence. As



Trespass is based on possession, the Defence of Title in a Third Person was obviously not good. But in Trpver the situation may be different where the plaintiff, not being in possession,~° is relying on his right to posses-
59. Grant v. King, 14 Vt. 367 (1842). See, also, Turner V. Waldo, 40 Vt. 51 (1867).
00. If the plaintiff in Trover Is relying on possession, title in a third party may not be pleaded success-

sion. In the latter case, the defendant may sometimes effectively take issue as in the case of Leake v. Loveday,6in which A was the holder of a bill of sale upon furniture be­longing to B, the effect of the bill being to leave the possession of the furniture in B, but to convey the ownership to A,, with a provision that if B failed to pay the money due under the bill, A should have an imme­diate right to possession. B went into bank­ruptcy, whereupon the Title to the furniture, being still in his “order and disposition,” passed to his assignees in bankruptcy. Be­fore the assignees could liquidate, the furni­ture was seized on Execution, in satisfac­tion of a debt which B owed to other credi­tors. In this situation A, relying on his bill of sale, sued the defendant-sheriff, who took under the Execution, in Trover, only to be met with the Defence that Title was. in Third Parties—the assignees in bank­ruptcy. In holding the Defence good, it

was pointed out that since the plaintiff was not in possession he necessarily had to make out his right to immediate possession, and hence by Way of Defence the sheriff could plead the Superior Title of the assignees in bankruptcy, even though he was not acting under their authority.
Description of Property

IN actions for injuring or taking away goods or chattels, it is in general necessary that their kind, quantity, number, and value should be stated.°2 It would be insufficient


fully. Webb v. Fox, 7 T.R. 391, 101 Eng.Rep. 1037

(1797).
91. 4 Man. & 0. 072, 134 Eng.Rep. 399 (1842).


02. Winchester v. Bounds, 55 Iii. 451 (1870); Kerwin

V. Bathatchett, 147 fll.App. 561 (1909); Maine:

Stinclifield v. Twaddle, 81 Me. 273, 17 A. 66 (1889);

Hasleton V. Locke, 104 Me, 164, 71 A, 661, 2 L.R.A.

(N-S.) 35, 15 Am-Can. j009 (1908); New Hampshire:

Edgerly v Emerson, 23 N.H. 555, 55 Am.Dec. 207

(1851); Town of Colebrook y. MerrIll, 46 N.H. 160

(1865); pennsylvania: Taylor v. MOrgan, 8 Watts

(Pa.) 333 (1834); Federal: Ban y. Patterson, 1



Cranch 0.0. 607, Fed.Cas.No.814 (C.C.fl.C.1860);

Sec. 103

ACTJON OF TROVER

217


to allege that the defendant injured or took the plaintiff’s goods and chattels without showing their number or nature. In Trover, Trespass, and Case less particularity is re­quired than in Detinue or Replevin, in which the plaintiff seeks to recover the goods them­selves, The price or value should be stated, though it has been held that the omission to do so will not be fatal.63 The time should also be alleged, though it seems that it is only essential to show a time before suit broughtM It is usual to state that the plain­tiff, being possessed of such goods as are de­scribed, on a certain day, casually lost the same out of his possession, and that after­wards, on the day and year aforesaid, they came into the possession of the defendant by finding, in accordance with the ancient form,
Henry v. Sowles, 28 Fed, 521 (C.CJJ.C.1809). See, also. Bowers, A Treatise on the Law of Con­version, c. IX, §~ 494—497 (Boston 1917).
It is sufficient to allege the nature nnd kind of chat­tels referred to and the quantity or number con­verted. Howton v. Mathias, i97 A)a. 457, 78 So. 02 (1916).
A complaint for the conversion of money derived from the sale of the plaintiff’s cotton was held sufficient to describe the money. Howton V. Mathias, 197 Ala. 45?, 73 So. 92 (1016).
6~. Connoss V. Meir, 2 E.D.Smith (N.Y.) 314 (1854).
See, also, Massachusetts: lasigi v. Shea, 148 Mass.

535, 20 N.E. 110 (1889); Missouri: Fry v. Baxter,

10 Mo, 302 (i847); Virginia: Pearpoint v. Henry, 2

Wash. (va.) 192 (1796).


In an Allegation for the Conversion of a Note, an Al­legation of its Face value is a sufficient Averment of its Value. Farmers’ State Guaranty Bank y. Pierson 201 SW. 424 (Tex.Civ.App.i&l8).
In an action for the Conversion of an automobile, the description of an automobile In the complaint as “one automobile, the property of the plaintiff,” was held sufficient In Robertson v. Hooton, 17 Ala.App. 258, 85 So. 5~ (1919).
64. Maryland: Dietus v. Fuss, 8 Md. 145 (1855); New

Jersey: Glenn v. Garrison. 17 N.J.L. 1 (1790).


A Count in ¶rrover Is subject to Demurrer where the time of conversion Is not averred. Schlossburg V. Willingham, 17 Ala.App. 678, 88 So. 191 (1921).

though the statement of the finding is not now material.65


DECLARATION IN TROVER—ESSENTIAL

ALLEGATIONS: (3) THE DEFEND­ANT’S WRONGFUL ACT OF CONVER­SION



103. The Declaration should allege a Con­version by the defendant to his own use, con­trary to the Rght of the plaintiff, A Conver­sion may be:
(I) By wrongfully taking and carrying away goods, or assuming a dominion over them, or otherwise depriving the owner of them,

(II) By wrongfully assuming the control, or dominion over, or right to dis­pose of goods, of which the actual possession has been lawfully ob­tained.

(III) By merely wrongfully Cetaining goods lawfully obtained. In this case, and in this case only, a de­mand and refusal to restore the goods are necessary before bring­ing the Action. A demand and refusal are not necessary to make a Conversion where the defendant has already done an Act of Con­version.
The Nature of Conversion.

A CONVERSION of the property is the gist of the Action of Trover, and is always essential to support it. It is for the conver­sion of the goods by the defendant to his own use, not for the act of taking them, that Dam­ages are recoverable. For the act of taking, the remedy is Trespass.


To constitute a conversion, it is necessary

that he shall have, in some sense, n,isappro­priated or assumed adverse dominion over
65. Royce v. Oakes, 20 R.T. 252, 38 A. 371 (1897).
A General Demurrer to a Petition in an Action for ConversIon which avers facts showing that the

plaintiff has a General or Special Property in the chattels alleged to have been converted, the right of possession thereof at the time of conversIon, and that the defendant lass converted the seine to his own use, Is properly overruled. Wire v. Siocum, 80 Okla. 111, 104 P. 1061 (1921).



218

OFFENSIVE PLEADINGS



Ch. 9

the goods and deprived the owner of them.66 A conversion may take place in the following ways:


(I) By a Wrongful Taking and Carrying Away or Destruction.—The wrongful taking, it folloWed by a removal or carrying away or assumption of dominion, of the goods of another, who has the right of immediate p05-session, is of itself a conversion; and so is the compelling of a party to deliver up goods, and carrying them away. The wrongdoer need not further use or dispose of the goods.67 It has been said that, wherever Trespass will lie for taking goods of the plaintiff wrong­fully, Trover will also lie; but this is not so. Trespass and Trover are concurrent reme­dies for the wrongful taking of goods where there has been a complete carrying away,°8
66. English: Fouldes v. Willoughby, 8 hI. & W. 540,

151 Eng.Rep. 1153 (1841); Illinois: Forth v. Pursley,

82 111. 152 (1895); Clement v. Boone, 5 1ll.App. 100

1901); New York: Bailey v. Adams, 14 Wend. (N.



I.) 201 (1835).

Trover does not lie where the plaintiff has the posses­sion, and the defendant, who had the Legal Title, has merely assorted it by a sale, without an actual taking or delivery of possession. Massachusetts:



Bubin v. Huhn, 229 Mass. 126, 118 N.E. 290, 4 At. II. 1190 (1018); Pennsylvania: Moorotiend y. See­field, 111 Pa. 554, 5 A. 732 (1886). See, also, arti­cles by Clark, The Test of Conversion, 21 Harv,L. Rev. 408 (1908); 21 L.Q.Rev. 43 (1905); Salmond, Law of Torts, e. III, 296—308 (London 1907).

67. 2 Saunders, Law of Pleading and Practice in Civil

Actions, 410 (5th Am. ed., Philadelphia 1851); Eng­lish: Bishop v. Montague, Cro,Elis. 824, 78 Bug.

Rep. 1051 (1604); Massachusetts: Prescott v.

Wright, 6 Mass. 20 (1809); Partlaud v. Read, 11 Al­len (Mass.) 231 (1865); Edgerly v. Whalan, 106

Mass. 307 (1871); Michigan: Daggett v. Davis, 53

Mieb. 35, 18 N.W. 548 (1884); Gibbons v. Psi-well, 63

Mich. 344, 20 NW. 855, 6 Am.St.ltep. 301 (1886);

New Jersey: Glenn v. Garrison. 17 N.J.L. 1 (1833);

New York: Farringtcn v. Payne, 15 Johns. (N.Y.)

431 (1818); South Carolina: Jones v. Dugan, 1 Mc-

Cord (S.C.) 428 (1821).


The collection of a note by one who has no interest in it is a conversion, Chiekering v. Raymond, 15

111. 362 (1854).

68. Mass acbusetts: Prescott v. Wright, 6 Mass. 20 (1802); Pierce v, BenjamIn, 14 Pick. (Mass.) 856, 25 Am.Dec. 396 (1833); New Hampshire: Wadleigh v.

but not otherwise. A conversion is not nec­essary to support trespass, but it is neces­sary to support Trover. A mere seizure of goods by a stranger, who immediately relin­quishes possession, even though there was some asportation, will support Trespass, but not Trover, for there is no conversion.69 If, by a mere seizure without a carrying away, the possession is changed in law, then there is a conversion. Trover will therefore lie where goods are wrongfully seized, as a dis­tress, though there is no removal of them.7°
Trover lies to recover the value of goods obtained by the defendant from the plaintiff by fraud. Replevin will also lie. This in effect is the specific enforcement of the duty of the fraudulent buyer to return the goods and the corresponding right of the seller to immediate possession.7
(II) By a Wrongful User, or Assumption of Title.-..-.Again, the wrongful assumption of the property in goods, or dominion over them or right of disposing of them, may be a con­version in itself, though actual possession may have been obtained lawfully, or not ob­Janvrin, 41 N.H. 520, 77 Am.Dec. 780 (1800); Drew

v. Spaulding, 45 N.H. 472 (1864); in other words, Trover is a concurrent remedy with “Trespass do Rents Asportatis.”


69. English: Samuel v. Morris, C Car, & P. 620, 172

Eng.Rep. 1390 (1834); Fopides v. ‘Willoughby, 8 M. &

W. 540, 151 Eng.Rep. 1153 (1841); Massachusetts:

Loring v. Mulehay, 3 Alten (Mass.) 575 (1862);



Death v. Walker, 14 Mass. 500 (1780).
70. English: Cooper -v. Monke, Willes 50, 125 Eng. Rep. 1051 (1737); New Hampshire: Drew v. Spauli)­ing, 45 N.H. 472 (1864).
~I. Maine: Atlas Shoe Co. v. Rechard, 102 Ide. 10?,

66 A. 390, 10 LILA. (N.S.) 245 (1907); Michigan:

Beebe v, Knapp, 28 Mich. 53 (1843); Reineman v.

Steiger, 54 Micla. 232, 19 NW. 965 (1884); 3 Willis-

ton. A Treatise on the Law of Contracts, c. 42, §

1370 (New York 1936-1045).

The seller must, as a nile, tender to the buyer the re­turn of whatever was paid for the goods. Willis-ton, The Law Governing Sales of Goods, at Common Law and tnder the Uniform sales Act, c. 22, 567 (Rev. ed., New York 1948).

Sec. 103

ACTION OF TROVER

219

tamed at all.72 The mere taking of an as­signment of goods from a person who has no right or authority to dispose of them, has



As a rule, Trover will not lie for a mere omission br nonfeasance against a person

been held a conversion.73

Where a person

intnisted with the goods of another wrong­fully puts them into the hands of a third per­son, or otherwise disposes of them, or mis­uses them, it is a conversion.’4
72. English: M’Combie v. Davies, 6 East 540, 102

Eng.Rep. 1393 (1805); Jackson v. Anderson, 4 Taunt.

24, 128 Eng.Rep. 235 (1811); Alabama: Ainsworth

v. Partillo, 13 Ala. 460 (1848); Illinois: Pollett V.

Edwards, 30 Ill.App. 386 (1889); Indiana: Lindley

v. Downing, 2 md. 418 (1850); Maine: Whipple V.

Gilpatrick, 19 Me. 427 (1847); Webber v. Davis, 44

Me. 147, 69 Am.Dec. 87 (1857); Massachusetts:

Gibbs v. Chase, 10 Mass. 128 (1813); Michigan:

Cook v. Hopper, 23 Mich. 511 (1871); Scudder V.

Anderson, 54 Mich. 122, 19 NW. 775 (1884); Minne­sota: Parrnnd v. Hurlburt, 7 Minn. 477 (1862); New

Hampshire: Gilmaa V. HIll, 36 N.H. 311 (1858);

Latbrop v. Blake, 23 N.H. 46 (1851); New York:

Everett v. Coffin, 6 Wend. (N.Y.) 603, 22 Am.Dec. 551

(1831); Reynolds v. Shuler, S Cow. (N.Y.) 323 (1826);

Bristol v. Burt, 7 Johns, (N.Y.) 254, 5 Am.Dec. 264

(1811); Vermont: Rice v. Clark, 8 Vt. 109 (1836). Where the purchaser of land without right forbids

the assignee of a chattel on the premises to remove it, there is a conversion. Badger v. Batavia Paper Mfg. Co., 70 111. 302 (1873).



And Trover lies for property lawful]y distrained or

taken In Execution, if it Is used or sold without a compliance with the law as to appraisal. Tripp V. Grouner, 60 Ill. 474 (1871).

It is not essentinl, to a conversion, that the property be appropriated to the use of the wrongdoer. It is enough that he disposes of it or assumes to dispose of it. Mead v. Thompson, 78 Ill. 62 (1875).
73. English: Baldwin v. Cole, 6 Mod. 212, 87 Eng.

Rep. 964 (1704) M’Combie v. Davies, 6 East 540,

102 Eng.Rep. 1393 (1805); New York: Everett v.

Coffin, 6 Wend. (N.Y.) 603 (1831); Vermont: Rice v.

Clark, 8 Vt. 109 (1830).
14. English: M’Combie v. Davies. 6 East 540, 102

Eng.Rep. 1393 (1805); Jackson v. Anderson, 4 Taunt

24, 128 Eng.Rep. 235 (1811): Illinois: Chickering V.

Raymond, 15 III. 362 (1854); Race v. Chandler, 15

Ill.App. 532 (1884); Massachusetts: Gibbs v. Chase,

10 Mass. 128 (1813); Bowlin v. Nye, 10 Cusb. (Mass.)

416 (1852); Briggs -cc Boston & L. B. Co., 6 Allen

(Mass.) 246, 83 Am.Dec. 626 (1863); Hall v. Boston &

W. R. Co., 14 Allen (Mass.) 443, 92 Am.Dec. 783

(1807); Mlcnigan: Barnum v. Stone, 27 Mich. 332

(1873); Johnston v. Whitternore, 27 MI ch. 463

(1873); Edwards v. Frank, 40 Mich. 616 (1879);

Hicks v. Lyle, 46 MIch. 488, 9 N.W. 529 (1881); Gib­bons v. Farwell, 63 Mich. 344, 29 NW. 855, 6 AmSt.

Rep. 301 (1886); New Hampshire: Lathrop v. Blake,

23 N.H. 46 (1851); New York: Lockwood v. Bull, 1

Cow. (N.Y.) 322, 13 Am.Dec. 539 (1827); Bristol v.

Burt, 7 Johns. (N.Y.) 254, 5 Am.Dec. 264 (1510);

Rlghtmyer v. Raymond, 12 Wend. (N.Y.) 51 (1834);

Pierce v. Schenck, 3 Hill (N.Y.) 28 (1842); Pennsyl­vania: Etter v. Bailey, S Pa. 442 (1848); Vermont:

Grant v. King, 14 Vt. 367 (1542); Turner v. Waldo,

40 Vt. 51 (1867).
Trover will lie against a carrier or wharfinger who delivers goods to a wrong person by mistake or un­der a forged order, or, of course, knowingly. Eng­lish: Stephenson v. Dart, 4 Bing. 483, 130 Eng.Rep. 851 (1828); Wyld v. Pickford, S M. & W. 461, 151 Eng.Rep. 1113 at 1120 (1841); Devereux v. Bar­clay, 2 Barn. & AId. 702, 106 Eng.Rep. 521 (1819); Lubbock v. Inglis, 1 Stark. 104, 171 Eng.Rep. 415 (1815); Alabama: Bullard v. Young, 3 Stew. (Ala.) 46 (1830); Illinois: Illinois Cent. H. Co. v. Parks, 54 111. 294 (1870); Indianapolis & St. L. H. Co. V. Herndon, 81 Ill. 143 (1876); Massachusetts: Claflin v. Boston, etc. B. Co., 7 Allen (Mass.) 341 (1863); Bowlin v. Nyc, 10 Cash. (Mass.) 416 (1852); Lichten­hem v. Boston & P. R. Co., 11 Cush. (Mass.) 70 (1853); Michigan: Gibbons v. Farwell, 63 Mich. 344, 29 NW. 855, 6 Am.St.Rep. 301 (1886); New

Hampshire: Moses v. Norris, 4 N.H. 304 (1828); New York: Packard v. Getman, 6 Cow (N.Y.) 757 (1827); Packard -cc Getman, 4 Wend. (N.Y.) 613 (1830); Hawkins v. Hoffman, 6 Hill (N.Y.) 586, 41 AmJJec. 767 (1844).


But not for mere negligent loss by carrier; In this case the action should be Case or Assumpsit Moses v. Norris, 4 N.H. 304 (1828).
It lies against a person who Illegally makes use of property of which he has lawfully obtained the ac­tual custody or possession. English: Mulgrave v. Ogden, CroEliz. 219, 78 Engitep. 475 (1590); Nichol­son v. Chapman, 2 El., IL. 254, 126 EngSep. 536 (1793); Richardson v. Atkinson, I Str. 576, 93 Eng. Rep. 710 (1723); IllinoIs: Johnson v. Weedman, 4 Scam. (IlL) 495 (1843); Maine: Ripley V. Dolbier, 18 Me. 382 (1841); Massachusetts: Dench v. Walk­er, 14 Mass. 500 (1780); New York: Lockwood v. Bull, I Cow. (N.Y.) 322, 13 AimDce. 539 (1827); Ver­mont: Rice v. Clark, 8 Vt. 109 (1836).
The action will lie against a warebouseman with whom rain has been placed merely for storage, and who has wrongfully mixed it with his own. Illinois:

Haddix v, Elnstman, 14 fll.App. 443 (1888); Michi­gan; Erwin v. Clark, 18 MIch. 10 (1864).

It will also lie against a bank which places a special

deposit with its own funds, and reports and treats

220 OFFENSIVE PLEADINGS

who was lawfully in the actual possession of goods, as against a carrier or other bailee who negligently loses the goods, or neglects to deliverthem, but the remedy in such cases is by Assumpsit or Case.” There is flO con­version if the bailee sets up no title or claim in defiance of the owner’s right, or has not exercised a dominion inconsistent with his title.
The rule is that one tenant in common of goods cannot maintain Trover against his co­tenant if the goods remain in the latter’s possession, although he refuse to permit the former to participate in the use of the arti­cle, since, in law, the possession of one is the
it as a part of its own assets, First Nat. Bank of Monmouth v. Dunbar, 19 Ill.App. 558 (1886).

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