BROWN v. CONNELLY. 59.

(Supreme Court of Indiana, 1840. 5 Blackf. 390.)

Appeal from the Montgomery Circuit Court.

BLACKFORD, J.1 Connelly sued Brown for malicious prosecution. The declaration states that the defendant, by falsely and maliciously making an affidavit that the plaintiff had feloniously stolen his cow, had caused the plaintiff to be arrested under a justice's warrant, and to be imprisoned until, &c. There are two special pleas relying on probable cause. The first merely states, in general terms, that the defendant had a probable cause for the prosecution. The second sets out the facts as follows: That the plaintiff drove away the defendant's cow from Tippecanoe county to Putnam county, without the defendant's knowledge or consent, and sold her to one Bridges; and that, afterwards, when the defendant asked the plaintiff if he had sold any cows to Bridges, the plaintiff said he had not. The general issue was also pleaded. The first plea was specially demurred to, because the facts are not stated, and the demurrer was correctly sustained.2 The second plea was also specially demurred to on the ground that it amounted to the general issue; and the Court sustained the demurrer. The cause was tried on the general issue, and a verdict given for the plaintiff. Motion for a new trial overruled, and judgment on the verdict.

The second plea is not bad for the cause assigned. Whether any given facts amount to a probable cause for the prosecution, is a question of law. Johnstone v. Sutton, 1 T. R. 545; Blachford v. Dod, 2 Barn. & Adol. 179. And such facts may therefore be specially pleaded. 1 Chitt. Pl. 528; Morris v. Corson, 7 Cow. (N. Y.) 281. It is true, as the general issue was filed, under which probable cause may be proved, the plea in question was unnecessary, and might have been struck out on motion. Cotton v. Brown, 3 Adol. & Ell. 312. But still it was not subject to a demurrer for the cause alleged. We think, however, that this plea is defective in substance, for not show

1 Part of the opinion omitted.

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2 Horton v. Smelser, 5 Blackf. (Ind.) 428 (1840); Legrand v. Page, 7 T. B. Mon. (Ky.) 401 (1828). Accord. See, also, 13 Pl. & Pr. 462.

Likewise in trespass for false imprisonment in pleading reasonable ground for suspecting plaintiff guilty of a crime, the facts must be stated. Mure v. Kaye, 4 Taun. 34 (1811); Wade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572 (1865). 3 Birch v. Wilson, 2 Mod. 274 (1677); Green v. Pope, 1 Ld. Raym. 125 (1696) semble. Accord.

4 Newton v. Creswick, 3 Mod. 165 (1630); White v. Fox, 1 Bibb (Ky.) 369, 4 Am. Dec. 643 (1809); Ross v. Neal, 7 T. B. Mon. (Ky.) 407 (1828); Folger v. Washburn, 137 Mass. 60 (1884). Accord. Fant v. McDaniel, 1 Brev. (S. C.) 173, 2 Am. Dec. 660 (1802). Contra.

That the prosecution terminated in favor of the present plaintiff is put in issue by not guilty. Cole v. Hanks, 3 T. B. Mon. (Ky.) 208 (1826); Lowe v. Wartman, 47 N. J. Law, 413, 1 Atl. 489 (1885).

ing a sufficient excuse for making the charge described in the declaration.

PER CURIAM. The judgment is affirmed with one per cent. damages and costs."

5 Pain v. Rochester, Cro. Eliz. 871 (1602); Horton v. Smelser, 5 Blackf. (Ind.) 428 (1840) semble; Garrard v. Willet, 4 J. J. Marsh. (Ky.) 628 (1830) semble; Morris v. Corson, 7 Cow. (N. Y.) 281 (1827) semble. Accord. Newton v. Creswick, 3 Mod. 165 (1630). Contra.

Generally a plea in confession and avoidance argumentatively denying a necessary allegation is bad. Green v. Pope, 1 Ld. Raym. 125 (1696); McPherson v. Daniels, 10 B. & C. 263 (1829). Accord.

But in the early cases there was uncertainty.

Lord Cromwell's Case, 4

Co. 14a (1581) semble; Shrewsbury v. Stanhope, Popham, 66 (1595). And it seems that to-day even affirmative defenses, generally, cannot be pleaded in confession and avoidance. Wiggins Co. v. Blakeman, 54 Ill. 201 (1870). Accord. Templeman v. Case, 10 Mod. 24 (1712). Contra.

Yet there is some indication that privilege in defamation may be pleaded in confession and avoidance if the defendant so desires. Hagan v. Hendry, 18 Md. 177, 191 (1861) semble; Carpenter v. Bailey, 53 N. H. 590 (1873) semble.

SWIFT v. MOSELEY et al. l.

(Supreme Court of Vermont, 1838. 10 Vt. 208, 33 Am. Dec. 197.)

Trover, for two oxen, three cows and nine sheep. Plea-Not guilty. On the trial of the cause in the county court, it appeared in evidence, that, in the spring of 1835, the plaintiff leased a farm, lying in Bridport, (of which he was possessed in right of his wife,) together with the above mentioned cattle and sheep, to one Jirah Swift, for the term of one year; by the terms of said lease, the plaintiff and said Jirah Swift, were, at the end of the year, to divide the profits of the farm and the increase of the stock, equally between them, which stock was to remain upon the farm during the year, unless sold or taken off by the consent of the plaintiff and said Jirah Swift; that some time in the month of August, 1835, the said Jirah Swift sold said cattle and sheep to the defendants, without the consent of the plaintiff, and absconded, and that the defendants, immediately after making the purchase, drove the cattle and sheep away from the farm. The plaintiff introduced testimony tending to prove, that the defendants knew that Jirah Swift had no right to dispose of the cattle and sheep, and that they purchased them much under their value. Upon this evidence, the county court decided, that this action could not be sustained, as the plaintiff brought the suit previous to the termination of said lease, by the terms of which he had parted with his right of possession of the property in question, during its continuance, and rendered a judgment for the defendants, to which decision the plaintiff excepted.

REDFIELD, J. It seems to be well settled, that the plaintiff, in trespass de bonis asportatis, or trover, in order to maintain the action, must have had, at the time of the injury complained of, either the actual custody of the thing injured or taken, or a property in it, either general or special, with the right to immediate possession. If he had

1 Gordon v. Harper, 7 D. & E. 9 (1796); Bloxam v. Sanders, 4 B. & C. 941 (1825); Booker v. Jones, 55 Ala. 266, 274 (1876); Vincent v. Cornell, 13 Pick. (Mass.) 294, 23 Am. Dec. 683 (1832); Raymond v. Guttentag, 177 Mass. 562, 59 N. E. 446 (1901); Clark v. Draper, 19 N. H. 419 (1849); Andrews v.

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the actual custody of the thing, even wrongfully, he may maintain the action against every one, whose right is not superior to his. Perhaps a mere servant could not be said to have any such custody.* His possession is that of the master. The general owner of a chattel may always maintain the action, unless he have parted with the possession, for a "definite term." 5 Ward v. Macauley, 4 T. R. 489. Lord Kenyon in that case intimates an opinion, that trover will lie, but in Gordon v. Harper, 7 T. R. 12, it is expressly held, that case is the only remedy for an injury done to the thing bailed, during the continuance of the bailment.

In the present case it is contended, that the act of the lessee or bailee, in selling to the defendants, did, ipso facto, determine his right, and revive the right of the plaintiff to immediate possession. If so, the plaintiff may maintain this action. It may be well to inquire what acts will determine a bailment of this character.

It is certain the act of a mere stranger will not operate to revive the plaintiff's right to immediate possession. Any misuse or abuse. of the thing bailed, in the particular use for which the bailment was made, will not enable the general owner to maintain trespass or trover against the bailee. His only remedy is case. But if the thing be put

Shaw, 15 N. C. 70 (1833); Haines v. Cochran, 26 W. Va. 719, 723 (1885) semble. Accord. Longfellow v. Lewis, Fed. Cas. No. 8,487 (1878: Mass. law); Cooke v. Woodrow, Fed. Cas. No. 3.181 (1807: D. C. law). Contra.

2 Rochester Co. v. Locke, 72 N. H. 22, 54 Atl. 705 (1903); Marcy v. Parker, 78 Vt. 73, 84, 62 Atl. 19 (1905). Accord.

8 Basset v. Maynard, Cro. Eliz. 819 (1601) semble; Carter v. Bennett, 4 Fla. 283, 355 (1852) semble; Grubb v. Guilford, 4 Watts (Pa.) 223, 28 Am. Dec. 700 (1835). Accord. Kemp v. Thompson, 17 Ala. 9 (1849); Weil v. Ponder, 127 Ala. 296, 28 South. 656 (1900). Contra.

Accordingly jus tertii is no defense where the plaintiff was in possession and the defendant is unconnected with the jus tertii. Armory v. Delamirie, 1 Strange, 505 (1722); Webb v. Fox, 7 D. & E. 391 (1797); Skinner v. Pinney, 19 Fla. 42, 54, 45 Am. Rep. 1 (1882) semble; Coffin v. Anderson, 4 Blackf. (Ind.) 395, 410 (1837); Stevens v. Gordon, 87 Me. 564, 33 Atl. 27 (1895) semble; Harker v. Dement, 9 Gill (Md.) 7, 52 Am. Dec. 670 (1850); Stearns. v. Vincent, 50 Mich. 209, 216, 15 N. W. 86, 45 Am. Rep. 37 (1883) semble; Prosser v. Woodward, 21 Wend. (N. Y.) 210 (1839) semble; Marcy v. Parker, 78 Vt. 73, 86, 62 Atl. 19 (1905). Accord. Sevier v. Holliday, 2 Ark. 512, 576 (1840) semble; Ribble v. Lawrence, 51 Mich. 569, 17 N. W. 60 (1883: where defendant acts peaceably and under claim of right); Williams v. Brown, 137 Mich. 569, 572, 100 N. W. 786 (1904) semble; Jones v. Sinclair, 2 N. H. 319, 9 Am. Dec. 75 (1820) semble; Glenn v. Garrison, 17 N. J. Law, 1 (1839); Schermerhorn v. Van Volkenburgh, 11 Johns. (N. Y.) 529 (1814: not clear); Hostler v. Skull, 1 N. C. 183, 1 Am. Dec. 583 (1801); Smoot v. Cook, 3 W. Va. 172, 100 Am. Dec. 741 (1869). Contra.

4 Ludden v. Leavitt, 9 Mass. 104, 6 Am. Dec. 45 (1812); Stearns v. Vincent, 50 Mich. 209, 217, 15 N. W. 86, 45 Am. Rep. 37 (1883); Dillenback v. Jerome, 7 Cow. (N. Y.) 294 (1827). Accord.

5 Right to possession is sufficient. Roberts v. Wyatt, 2 Taun. 268 (1810); Farrant v. Thompson, 5 B. & Al. 826 (1822); Moulton v. Witherell, 52 Me. 237 (1863); Hunt v. Holton, 13 Pick. (Mass.) 216 (1832); Trust Co. v. Hardwood Co., 74 Miss. 584, 594, 21 South. 396 (1896); Drake v. Redington, 9 N. H. 243 (1838); Smith v. James, 7 Cow. (N. Y.) 328 (1827); Jones v. Dugan, 1 McCord (S. C.) 428 (1821). Accord.

to a different use from that for which it was bailed, by the consent of the bailee, we think the bailor may maintain trespass or trover.

It has been long settled that if the bailee kill or destroy the thing bailed, trespass or trover will lie. Coke's In. a, 53. It was early held, too, that the interest of the tenant in standing trees was so far determined by their being severed from the freehold, that the landlord might maintain trespass.

In the case of Farrant v. Thompson, 5 Barn. & Ald. 826, found in the 7th Com. Law R. it was held that machinery, leased and by the lessee severed from the freehold, became instanter re-vested in the lessor, and he might maintain trover even during the continuance of the term. The case is expressly put by the court upon the ground, that the lessee, by his wrongful act, forfeits his right, and thus "puts an end to his qualified possession." If so in that case, much more in this, where the bailee sells the property. The same doctrine here decided is held in the case of Sanborn v. Colman, 6 N. H. 14, 23 Am. Dec. 703.

The judgment of the County Court is reversed, and a new trial granted.

(Superior Court of Delaware, 1840. 3 Har. 68.)

Action of trover to recover the value of ten white pine logs. The logs in question were found by plaintiff floating in the Delaware Bay after a great freshet, were taken up and moored with ropes in the mouth of Mispillion creek. They were afterwards in the possession of defendants, who refused to give them up, alleging that they had found them adrift and floating up the creek.

BAYARD, Chief Justice, charged the jury: The plaintiff must show first, that the logs were his property; and secondly, that they were converted by the defendants to their own use. In support of his right of property, the plaintiff relies upon the fact of his possession of the

• Loeschman v. Machin, 2 Starkie, 311 (1818); Ayer v. Bartlett, 9 Pick. (Mass.) 156 (1829) semble; United Co. v. Holt, 185 Mass. 97, 69 N. E. 1056 (1904); Johnston v. Whittemore, 27 Mich. 463, 468 (1873); Morse v. Crawford, 17 Vt. 499, 44 Am. Dec. 349 (1845); Turner v. Waldo, 40 Vt. 51 (1867: not clear); Harvey v. Epes, 12 Grat. (Va.) 153, 166 (1855). Accord.

It is commonly said that if one having a special interest in a chattel recovers for a conversion of it that bars a suit by the general owner to recover for the same wrong, and vice versa. Flewellen v. Rave, 1 Bulstr. 68 (1611) semble; Nichols v. Bastard, 2 C., M. & R. 659 (1835) semble; The Winkfield, (1902) P. 42, 61 (1901: Code) semble; St. Louis Ry. v. Biggs, 50 Ark. 169, 172, 175, 6 S. W. 724 (1887: Code) semble; Smith v. James, 7 Cow. (N. Y.) 328 (1827) semble; Hostler v. Skull, 1 N. C. 183, 1 Am. Dec. 583 (1801) semble. See, also, 2 Williams' Saunders' Rep. 47 i; Holmes, Common Law, 171. In Ribble v. Lawrence, 51 Mich. 569, 17 N. W. 60 (1883) it was said, though not decided, that the recovery by a bare possessor would not bar a suit by the owner.