pear applicable to real property,128 but by many courts. the quantum of his recovery has been fixed by the extent of his interest.129 The principle that the owner of the title, out of possession, may sue in case and likewise obtain the amount of damages to his interest,130 will not, however, be allowed to work a disadvantage to the defendant by forcing him to pay twice. The doctrine of full liability to the possessor must be subject to an exception permitting the trespasser to prove in mitigation facts showing that the owner himself had no cause of action,181 e. g., that he has received the property or its proceeds,132 the effect of which may be to reduce the possessor's damages to the value of his interest.

Gwaltney v. Scottish Carolina Timber & Land Co., 115 N. C. 579, 20 S. E. 465.

128 See Elvins v. Delaware & A. Telegraph & Telephone Co., 63 N. J. Law, 243, 43 Atl. 903, 76 Am. St. Rep. 217; Perry v. Jefferies, 61 S. C. 292, 39 S. E. 515; Willey v. Laraway, 64 Vt. 559, 25 Atl. 436. Cf. Rogers v. Atlantic, Gulf & Pacific Co., 213 N. Y. 246, 107 N. E. 661, L. R. A. 1916A, 787.

129 "In the case of a tenant, whether for life or for years, he may sue and recover for the injury to his possession and right of enjoyment, and the reversioner or remainderman may sue and recover for any injury sustained to the estate in reversion or remainder. And where there are several entitled in succession as tenants for life, in tail, or in fee, they can recover only damages commensurate to the injury done to their respective estates. * * The damages there

fore must be assessed with reference to the extent of the several interests affected." Zimmerman v. Shreeve, 59 Md. 357, 362, per Alvey, J. See Frisbee v. Town of Marshall, 122 N. C. 760, 30 S. E. 21; Sedgwick on Damages (9th Ed.) vol. 1, p. 109 et seq.; Sutherland on Damages (3d Ed.) vol. IV, p. 2960 et seq.

180 Chattels, Forbes v. Parker, 16 Pick. (Mass.) 462; Goulet v. Asseler, 22 N. Y. 225. See New York, L. E. & W. R. Co. v. New Jersey Elec. Ry. Co., 60 N. J. Law, 338, 38 Atl. 828. Real property, Randall v. Cleaveland, 6 Conn. 328; Indianapolis, B. & W. Ry. Co. v. McLaughlin, 77 Ill. 275; Walden v. Conn, 84 Ky. 312, 1 S. W. 537, 4 Am. St. Rep. 204; Van Deusen v. Young, 29 N. Y. 9 (trespass under statute); Dutro v. Wilson, 4 Ohio St. 101. Cf. Cotes & Patchin v. City of Davenport, 9 Iowa, 227.

131 Anthony v. Gilbert, 4 Blackf. (Ind.) 348.

132 Sheldon v. Southern Express Co., 48 Ga. 625; Squire v. Hollenback, 9 Pick. (Mass.) 551, 20 Am. Dec. 506; Huning v. Chavez, 7 N. M. 128, 34 Pac. 44. See Elvins v. Delaware & A. Telegraph & Telephone Co., 63 N. J. Law, 243, 43 Atl. 903, 76 Am. St. Rep. 217. CHAP.TORTS-24

81. Conversion is committed where there has been an unlawful act of dominion exerted over the personal property of another in denial of his right.1

The common-law remedy was an action of trover, in which the declaration averred that defendant had found 2 the goods and had converted them to his own use. It was extended, however, to cases where dominion had been exercised; the allegation of a finding being treated as not

1 See Southern Exp. Co. v. Sinclair, 130 Ga. 372, 373, 60 S. E. 849; LAVERTY v. SNETHEN, 68 N. Y. 522, 524, 23 Am. Rep. 184, Chapin Cas. Torts, 191; Budd v. Multnomah Ry. Co., 12 Or. 271, 274, 7 Pac. 99, 53 Am. Rep. 355.

2 Whence the name.

3 The following form of declaration in trover, taken from "The Attorney's Practice in the Court of Common Pleas" (1746, 2d Ed.) vol. 1, p. 121, is found in Wigmore's Cases on Torts, p. 666: "Surrey to wit, J. T. late of etc. Brewer was attached to answer W. B. of a plea of trespass on the case; and whereupon said W. B. by L. R. his attorney complains, that whereas the said W. B. on the tenth day of December in the fourteenth year of his present majesty's reign at Kingston, in the County of Surrey, was possessed of the following goods and chattels, to wit (here insert the goods) to the value of one hundred pounds, as of his own proper goods and chattels; and being so thereof possessed the said W. B. casually lost the said goods and chattels out of his hands and possession; which said goods and chattels afterwards, to wit, on the said tenth day of December in the fourteenth year aforesaid at Kingston aforesaid in the county aforesaid, came by finding to the hands and possession

traversable. It was well described by Lord Mansfield as in form "a fiction; in substance, a remedy to recover the value of personal chattels wrongfully converted by another to his own use. The form supposes the defendant may have come lawfully by the possession of the goods. This action lies and has been brought in many cases where in truth the defendant has got the possession lawfully. Where the defendant takes them wrongfully and by trespass, the plaintiff, if he thinks fit to bring this action, waives the trespass and admits the possession to have been lawfully gotten." 5

It should therefore be noted that, where there had been an appropriation of personal property, it was essential to an action of trespass that the taking be shown to have been unlawful, while in an action of trover its lawfulness was assumed. Again, trespass, it has been seen, consists merely in the unlawful and forcible disturbance of another's possession. To constitute conversion, defendant must have acted in defiance, and not in recognition, of the other's right. This was well illustrated in the celebrated case of Fouldes v. Willoughby. Here plaintiff had embarked with two horses on defendant's ferry boat. Defendant refused transportation and put the horses back on shore, turning them loose on the road. Now, whatever may have been plaintiff's right to recover for trespass, it is evident that there was no conversion, of the said J. T. Nevertheless the said J. T. knowing the said goods and chattels to be the goods and chattels of the said W. B. and to him of right to belong and appertain, yet contriving and fraudulently intending craftily and subtilly to deceive and defraud the said W. B. of the said goods and chattels, has not delivered the said goods and chattels to the said W. B. (although often required) but afterwards to wit, on the tenth day of January, in the fourteenth year aforesaid at Kingston aforesaid, in the county aforesaid converted the said goods and chattels to his own proper use, to the damage of the said W. B. of £200 and thereupon he brings suit," etc. 4 Cooper v. Chitty, 1 Burr. 20, 31.

5 See, also, Barron v. Davis, 4 N. H. 338, 345; Burnham v. Pidcock, 33 Misc. Rep. 65, 67, 66 N. Y. Supp. 806; affirmed 58 App. Div. 273, 68 N. Y. Supp. 1007; Burroughs v. Bayne, 5 H. & N. 296, 309. • Bradley v. Davis, 14 Me. 44, 30 Am. Dec. 729; Stanley v. Gaylord, 1 Cush. (Mass.) 536, 48 Am. Dec. 643.

78 M. & W. 540.

"Why did this Because he rec

He may have

for at no time was there a denial of his right. defendant turn the horses out of his boat? ognized them as the property of the plaintiff. been a wrongdoer in putting them ashore; but how is that inconsistent with the general right which the plaintiff has to the use of the horses?" 8

At common law, trover lay only for the conversion of tangible chattels. This qualification no longer exists, for it is generally admitted that every species of personal property may now become the subject of an action of trover, including shares of stock,10 and certificates thereof,11 promissory notes,12 drafts,13 checks,14 muniments of title,15 and other instruments; 16 also money, provided it "is capable of

17

8 Fouldes v. Willoughby, 8 M. & W. 540, 549, per Alderson, B. In accord, SHEA v. MILFORD, 145 Mass. 525, 14 N. E. 769, Chapin Cas. Torts, 184; Mattice v. Brinkman, 74 Mich. 705, 42 N. W. 172; Hammond v. Sullivan, 112 App. Div. 788, 99 N. Y. Supp. 472; Simmons v. Lillystone, 8 Exch. 431.

• See State v. Omaha Nat. Bank, 59 Neb. 483, 492, 81 N. W. 319. 10 Payne v. Elliot, 54 Cal. 339, 35 Am. Rep. 80; Ayres v. French, 41 Conn. 142; Budd v. Multnomah Ry. Co., 12 Or. 271, 7 Pac. 99, 53 Am. Rep. 355. Cf. Daggett v. Davis, 53 Mich. 35, 18 N. W. 548, 51 Am. Rep. 91; Miller v. Miles, 58 App. Div. 103, 68 N. Y. Supp. 565, affirmed 171 N. Y. 675, 64 N. E. 1123.

11 Stewart v. Bright, 6 Houst. (Del.) 344; Daggett v. Davis, 53 Mich. 35, 18 N. W. 548, 51 Am. Rep. 91; Barry v. Calder, 48 Hun, 449, 1 N. Y. Supp. 586, affirmed 111 N. Y. 684, 19 N. E. 285; Connor v. Hillier, 11 Rich. (S. C.) 193, 73 Am. Dec. 105.

12 Kingman v. Pierce, 17 Mass. 247; Rose v. Lewis, 10 Mich. 483; Decker v. Mathews, 12 N. Y. 313; Brickhouse v. Brickhouse, 33 N. C. 404.

13 Comparet v. Burr, 5 Blackf. (Ind.) 419; People v. Bank of North America, 75 N. Y. 547; Evans v. Kymer, 1 B. & Ad. 528.

14 Lovell v. Hammond Co., 66 Conn. 500, 34, Atl. 511; Pawson v. Miller, 66 App. Div. 12, 72 N. Y. Supp. 1011.

15 Towle v. Lovet, 6 Mass. 394; Weiser v. Zeisinger, 2 Yeates (Pa.) 537.

16 Griswold v. Judd, 1 Root (Conn.) 221 (public securities); Merchants' & Planters' Nat. Bank v. Trustees of Masonic Hall, 62 Ga.

17 Cullen v. O'Hara, 4 Mich. 132; Grand Trunk Ry. Co. v. Edwards, 56 Barb. (N. Y.) 408. See Moody v. Keener, 7 Port. (Ala.) 218; Farrelly v. Hubbard, 148 N. Y. 592, 43 N. E. 65; Meyer v. Doherty, 133 Wis. 398, 113 N. W. 671, 13 L. R. A. (N. S.) 247, 126 Am. St. Rep. 967.

being identified, as when delivered at one time, by one act and in one mass, or when the deposit is special, and the identical money is to be kept for the party making the deposit, or when wrongful possession of such property is obtained." ." 18 Crops,19 timber,20 ore,21 and earth and gravel,22 are likewise subject to conversion upon severance from the realty.28

Like trespass, conversion requires a positive act, or, unlike trespass, a wrongful withholding. Thus it is not conversion if property intrusted to a bailee is lost through the latter's want of care, though he may be held for negligence. There is here only nonfeasance. Nor will demand and refusal after loss alter the case, for, the property not being in the bailee's possession, he cannot deliver it.24 But trover

271 (municipal bonds); Toplitz v. Bauer, 161 N. Y. 325, 55 N. E. 1059 (life insurance policy); Reading Finance & Securities Co. v. Harley, 186 Fed. 673, 108 C. C. A. 529 (certificates of deposit for stock). But trover cannot be maintained against a holder in due course, if the instrument be negotiable. Goodwin v. Robarts, 1 App. Cas. 476, 45 L. J. Ex. 748, 35 L. T. Rep. N. S. 179, 24 Wkly. Rep. 987; Gorgier v. Mieville, 3 B. & C. 45, 4 D. & R. 641, 10 E. C. L. 30, 107 Eng. Repr.. 651.

18 Hazelton v. Locke, 104 Me. 164, 167, 71 Atl. 661, 20 L. R. A. (N. S.) 35, 15 Ann. Cas. 1009, per Peabody, J., citing numerous cases. In accord, Hunnicutt v. Higginbotham, 138 Ala. 472, 35 South. 469, 100 Am. St. Rep. 45; Kerwin v. Balhatchett, 147 Ill. App. 561; Larson v. Dawson, 24 R. I. 317, 53 Atl. 93, 96 Am. St. Rep. 716. Cf. Gordon v. Hostetter, 37 N. Y. 99, holding that trover will lie for money, though not specifically earmarked; Kelsey v. Bank of Mansfield, 85 App. Div. 334, 83 N. Y. Supp. 281.

19 Nelson v. Burt, 15 Mass. 204; Mueller v. Olson, 90 Minn. 416, 97 N. W. 115; Leidy v. Carson, 115 Mo. App. 1, 90 S. W. 754; Black v. Eason, 32 N. C. 308; Donahue v. Shippee, 15 R. I. 453, 8 Atl. 541. 20 Sampson v. Hammond, 4 Cal. 184; Clow v. Plummer, 85 Mich. 550, 48 N. W. 795.

21 Ivy Coal & Coke Co. v. Alabama Coal & Coke Co., 135 Ala. 579, 33 South. 547, 93 Am. St. Rep. 46; Hartford Iron Mining Co. v. Cambria Mining Co., 93 Mich. 90, 53 N. W. 4, 32 Am. St. Rep. 488.

22 Nashville, C. & St. L. Ry. v. Karthaus, 150 Ala. 633, 43 South. 791; Radway v. Duffy, 79 App. Div. 116, SO N. Y. Supp. 334.

28 See Riley v. Boston Water Power Co., 11 Cush. (Mass.) 11. 24 DAVIS & SON v. HURT, 114 Ala. 146, 21 South. 468, Chapin Cas. Torts, 185; Berman v. Kling, 81 Conn. 403, 71 Atl. 507; Wams

L