gularly by the bailiff, and without any warrant from the sheriff (x). PART IV. So where in trespass against A. and B., the declaration contained two counts, and the defendants pleaded not New assignguilty to both, and justified an arrest upon mesne process, ment. and the plaintiff new-assigned a subsequent arrest made after he had been released from the first imprisonment by B. with the consent of A., and the plaintiff failed in the proof of his new assignment for want of proving the assent of A., it was held that he could not prove the same trespass against B. under the second count; for the justification of one trespass had been admitted, and the plaintiff could not avail himself of the same act of imprisonment both on the new assignment and also on the second count (y). And it is to be observed generally, that where there are as many counts as assaults in fact, and there are special justifications to some or all, a new assignment is never necessary; for the plaintiff may go into evidence of all, and will be entitled to recover in respect of all which are not justified both in allegation and proof. Whereas, by a new assignment he admits one assault to be justified, and * 1480 should he fail in proving more assaults than are admitted, the defendant would be entitled to a verdict, although, had the plaintiff traversed the justifications, the defendant might not have been able to establish them in law or fact. The plaintiff cannot under a new assignment prove that the sheriff continued in possession after the return-day of the writ; for, although he becomes a trespasser ab initio, it is not a new trespass (z). A replication of excess admits the cause of justification, Excess. and precludes the plaintiff from going into evidence to negative the justification (a). Thus, if the defendant justify as abating a nuisance, and the plaintiff reply excess, he cannot go into evidence to negative the nuisance (b). replication deny the excess, the proof of the issue is on the plaintiff. If the Upon a justification of cutting ropes for the purpose of disengaging two vessels which had run foul of each other, and issue taken on a new assignment of excess, it was (x) Oakley v. Davis, 16 East, 82. (y) Atkinson v. Matteson, 2 T. R. 176. (z) Aitkenhead v. Blades, 5 Taunt. 198. [1 Marsh. 17. S. C.] (a) 1 Starkie's C. 56. (b) Pickering v. Rudd, 1 Starkie's C. 56. [4 Camp. 219. S. C.] PART Excess. IV. New assignment. held that the plaintiff must prove a clear excess, and unnecessary injury (c). Where, in an action for an assault and false imprisonment, the defendant justified as acting under the warrant of the Speaker of the House of Commons, and issue was joined upon an alleged excess of the officer who executed the warrant, in using such a military force as was improper, excessive and unnecessary for the purpose, and breaking into the plaintiff's house; evidence was admitted of acts of violence committed by the mob in parts adjacent, though out of view and hearing of the plaintiff in his house, but who * 1481 * appeared to be actuated by the same intentions with those who were near the plaintiff's house, for the purpose of showing the danger and difficulty of executing the warrant by force against the plaintiff in his own house without the aid of the military (d). Trespass ab initio, Where the plaintiff brought trespass for pulling down a gate, plea a right of way, &c. replication that the defendant subsequently converted the gate, upon issued joined on the conversion, it was held that evidence that the defendant laid the gate on his own land, where the plaintiff might take it, did not prove a conversion (e). Some observations have already been made upon the competency of witnesses in actions of trespass (ƒ). TROVER. 1. PROOF of property in the plaintiff.-General or special. Of title in detail.-When necessary.-How proved. Direct and presumptive evidence of.Proof of strict title, when unnecessary.-Reference to the time of conversion.-Variance. 2. Of the conversion.-Direct proof.-Presumptive proof. -Variance. 3. Of damages. 4. Proofs by the defendant. In this action it is essential to prove, 1st. Property in the plaintiff (g), and a right of possession at the time of (c) Hockless & another v. Mitchell, 4 Esp. C. 86. (d) Burdett v. Colman, 14 East, 183. (e) Houghton v. Butler, 4 T. R. 364. (f) Supra, 764. (g) Per Lord Mansfield, in Cooper v, Chitty, 1 Burr. 31, the conversion by the defendant; 2dly. A conversion by the defendant; and 3dly. The value of the chattel. PART perty and pos Property in a chattel is either absolute or special, * and the evidence to prove it is either direct and positive or it * 1482 is presumptive. It is sufficient if the plaintiff has a special Right of proproperty in the goods; and it seems that any temporary session. interest in the goods, either in his own right, and for his own use, or by authority of law for legal purposes, coupled with the right to take and keep possession, or to maintain a possession already subsisting, is sufficient (1). Thus, if a party having a temporary interest in the possession of a chattel deliver it to the owner for a special purpose, he may, after that purpose has been answered, if the owner refuse to deliver it up, maintain trover (h). So bailees of goods (i) (2), as carriers, factors, consignees, pawnees, trustees (k), agisters of cattle (1), one who borrows a horse to till his land (m), churchwardens, in respect of goods the property of the parishioners (n), may maintain this action against one who converts the property (3). Where the house of a lessee for life is blown down, he may maintain trover against one who takes the materials; (h) Roberts v. Wyatt, 2 Taunt. 268. (i) Bro. Tres. 92; 1 Ld. Raym. 275; B. N. P. 33; 1 Mod. 31; 1 Str. 505. (k) 1 Roll. Ab. 4; B. N. P. 33; 2 Will. Saund. 47, a. (1) Bro. Tres. 67. (m) Ibid. (n) Dent v. Prudence, 2 Str. 852. Attorney General v. Ruper, 2 P. Wms. 126; 2 Will. Saund. 47, c. (1) [In Massachusetts, a depositary to whom an officer has entrusted goods attached, taking his receipt and a promise to re-deliver on demand, is held to be a mere servant of the officer, having no special property in the goods, and therefore not entitled to maintain any action against a wrong-doer. Ludden v. Leavitt, 9 Mass. Rep. 104. Warren v. Leland, ibid. 265. Secus, in New Hampshire. Poole v. Symonds, 1 N. Hamp. Rep. 289, and Eastman v. Eastman, there cited.] (2) [A bailee of yarn, who is to procure it to be made into cloth for a commission, has such a property in it as will entitle him to maintain trover against any one who wrongfully takes it from his agent or servant to whom he delivered it to be woven. Eaton & al. v. Lynde, 15 Mass. Rep. 242.] (3) [In Chesley v. St. Clair, 1 N. Hamp. Rep. 189, it was decided that in an action of trover by the bailee of a chattel against a stranger, the bailor is not a competent witness for the bailee, to prove the general property to be in himself,] PART IV. for he has a special property in them for the purpose of rebuilding the house (o). A special property, which may be sufficient as against a stranger, gives no right against one who has the general property (p). A carrier, or the depositary of goods for *1483 safe custody, may, by reason of special property, * maintain trover against a stranger, although he could not succeed against an owner or co-proprietor (r). Title when necessary to be proved. * 1484 In general, possession of a chattel is prima facie evidence of property in the possessor; but if the plaintiff has never had possession of the chattel, or if the contest be not with a mere stranger, but with one who will succeed in his proof of title unless the plaintiff can prove a better, it is necessary for the latter to resort to strict evidence of title. In the first place, where the plaintiff has not had actual possession, he must resort to proof of his title, in order to show his right of possession; as by evidence of the transfer of a ship by means of the proper documents (s); or of a title to any other chattel by purchase, where there has been no delivery (t); or of his title as executor under a will, where the conversion was previous to the taking of actual possession, which must be proved by means of the probate (u); or of his title as lord of a manor to a wreck or estray which has been converted by the defendant before seizure by the lord (x). If during an estate in trustees per autre vie, a tree were to be cut down, the property would vest in the owner of the inheritance, and he might maintain trover against one who converted it; but in such case, if he had not actual possession before the conversion, proof of his title to the inheritance would, it seems, be requisite (y). * Where A. was indebted to B., and B. to C., and it was (0) 2 Will. Saund. 47, a. (p) Holliday v. Camsell, 1 T. R. 658. (r) Ibid. (s) Supra, 1150. (t) See tit. Vendor & Vendee. (u) 2 Will. Saund. 47, a.; Latch, 214; cited by Lawrence, J. 7 T. R. 13. (x) 1 T. R. 480. F. N. B. 91. (y) Blaker v. Anscombe, 1 N. R. 25. So if trees be felled during a lease, the landlord may maintain trover (Berry v. Heard, Palm. 327, cited 7 T. R. 13); but a tenant in tail cannot maintain trover for trees cut during the life of a tenant for life without impeachment of waste. Pyne v. Dor, 1 T. R. 55. [See Mather v. Trinity Church, 3 Serg. & Rawle, 515.] agreed between the parties that goods in A.'s possession should be delivered to C. in satisfaction of the debt, and A. afterwards converted the goods to his own use, it was held that trover was maintainable by C. (a). PART IV. Title when In such a case, proof of the special circumstances would necessary. be necessary, and is essential in all cases where the plaintiff claims by virtue of his title, independent of actual possession, &c. tles. Next, where there is a conflict as to the title and right Conflicting tiof possession between parties, such that the title of either would prevail in the absence of proof of title and right of possession in the other, it is usually necessary to go into evidence of title, and is not sufficient to rest upon proof of mere possession: as in cases of disputed titles between vendors and purchasers of personal chattels (b), or their assignees (c), or between the sheriff and the owner of property, or his assignees under a commission of bankruptcy (d). title. Direct evidence of title in detail consists of course in the Evidence of proof of the documents and circumstances which are essential in point of law. As by proof of the different steps of bankruptcy and the assignment, where the suit is by the assignees. By the probate or letters of administration, in the case * of an executor or administrator, or by agreement (e). By proof of a gift accompanied with a delive (a) Flewellin v. Rave, 1 Bulst. 68. (b) Infra, tit. Vendor & Vendee. (c) Supra, tit. Bankrupt, 141; and infra, tit. Vendor & Vendee. (d) Supra, tit. Sheriff. [Lovett v. Cutler, 1 Mass. Rep. 67.] (e) Property vests by agreement without delivery. If A. be indebted to B. and B. to C., and it is agreed that A. shall deliver goods to C. in satisfaction of B.'s debt, the right vests in C. B. N. P. 35. 1 Bulst. 68. But one who contracts for a chattel to be made acquires no property till delivery, although he pays the whole price in advance. Mucklow v. Mangles, 1 Taunt. 318. [See Fonville v. Casey, cited Infra, 1494, note (2).] A custom that calico printers shall take damaged prints does not alter the property without the consent of the owner. Laclouch v. Towle, 3 Esp. C. 114. A conditional delivery does not vest property. If A. sell goods to be paid for on delivery, and A.'s servant deliver them without receiving the money, A. may, after a demand and refusal, maintain trover. 2 B. & A. 329. n. And where A. contracted to deliver iron to B. the latter agreeing to withdraw from circulation certain bills outstanding against A., and after delivery of part of the iron the bills were not withdrawn; and the Jury found that the delivery of the iron and withdrawing of the bills were to be cotemporary, it * 1485 |