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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
GREETING: COMMENCEMENT. Recital of Writ.
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;
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).
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
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).
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).
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
(1837).
Bare possession, even though wrongfully obtained, gives the possessor sufficient property to maintain the action against a mere stranger.42
(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
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). 4° 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).
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 tenant5’ A 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).
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