of right so to do, and they were afterwards taken out of his hands by distress for rent due from the owner to his landlord, it was held, in an action of trespass brought by the owner against the tortfeazor, that the latter might show this fact, in mitigation of damages, because of his belief of his right to take the goods. Higgins v. Whitney, 24 Wend. 379. And still later, in an action against a sheriff for an unauthorized seizure of goods under a fieri facias, he was permitted to show, in mitigation of damages, that the goods were afterwards taken from his custody, and lawfully sold on a distress warrant issued against the plaintiff in favor of a third person; the sale being independent of any agency of the defendant. Sherry v. Schuyler, 2 Hill, N. Y. Rep. 204.

Other Courts, however, have held, that wherever the property has been applied to the plaintiff's use, this may be shown in mitigation of damages. See Irish v. Cloyes, 8 Verm. R. 30, 33.

But this rule will generally be found to have been applied only in cases of illegal seizures or sales of goods by officers, who have subsequently either regularly sold the goods, or applied the proceeds of the irregular sale, in satisfaction of final process against the owner. Such were, in substance, the cases of Farrar v. Barton, 5 Mass. 395; Prescott v. Wright, 6 Mass. 20; Pierce v. Benjamin, 14 Pick. 356; Daggett v. Adams, 1 Greenl. 198; Board v. Head, 3 Dana, 489, 494; Stewart v. Martin, 16 Verm. R. 397. Even where the defendant was a mere trespasser, without pretence of title, he has been permitted to show, in mitigation of damages, that the goods had been duly taken out of his hands and sold by an officer, by virtue of a legal precept against the plaintiff. Squire v. Hollenbeck, 9 Pick. 551.

Perhaps the true principle will be found to be this: that where the appropriation of the goods or their value, to the plaintiff's use, was by his consent, expressed or implied, it goes in reduction of the damages; it being in the nature of a return and acceptance of the goods; and that such consent may always be implied, where the goods have been legally seized and sold under process against him. If the appropriation was made in any other manner, his consent may be shown by any evidence of a subsequent ratification; such as claiming the benefit of it, if it were delivered in payment to his own creditor or the like.

In trespass de bonis asportalis, if the Jury find for the plaintiff, the goods being still out of his possession, they must award him the value of the goods; they cannot award damages for the taking alone, on the ground that the goods are still the property of the plaintiff. Woolley v. Carter, 2 Halst. 85. But if the plaintiff has received the goods again, it is otherwise. Merrill v. How, 11 Shepl. 196.

TROVER.

§ 636. THIS action, the form of which is fictitious, is in substance a remedy to recover the value of personal chattels, wrongfully converted by another to his own use. To entitle the plaintiff to recover, two points are essential to be proved; (1.) property in the plaintiff,1 and a right of possession at the time of the conversion; and (2.) a conversion of the thing by the defendant to his own use. Whether the defendant originally came to the possession of the thing by right or by wrong, is not material. The plaintiff should also be prepared to prove the value of the goods at the time and place of the conversion; though this is not essential to the maintenance of the action.

§ 637. (1.) The property in the plaintiff may be either general and absolute, or only special; the latter of these interests being sufficient for the purpose. And where the plaintiff has a special property, he may maintain this action against even the general owner, if he wrongfully deprives him of the possession.3 Special property, in a strict sense, may be said to consist in the lawful custody of the goods, with a right of detention against the general owner; 4 but a lower

1 Per Ld. Mansfield, 1 T. R. 56. See also 2 Saund. 47 a to 47 k, note (1.)

2 Webb v. Fox, 7 T. R. 398, per Lawrence, J.

3 Roberts v. Wyatt, 2 Taunt. 268; Spoor v. Holland, 8 Wend. 445. 4 The nature of special property is thus discussed by Mr. Justice Story. "What is meant by a special property in a thing? Does it mean a qualified right or interest in the thing, a jus in re, or a right annexed to the thing? Or does it mean merely a lawful right of custody or possession of the thing, which constitutes a sufficient title to maintain that possession against wrongdoers by action or otherwise? If the latter be its true signification, it is little more than a dispute about terms; as all persons will now admit, that

degree of interest will sometimes suffice, against a stranger; for a mere wrongdoer is not permitted to question the title of

every bailee, even under a naked bailment from the owner, and every rightful possessor by act or operation of law, has in this sense a special property in the thing. But, this certainly is not the sense in which the phrase is ordinarily understood. When we speak of a person's having a property in a thing, we mean, that he has some fixed interest in it, (jus in re,) or some fixed right attached to it, either equitable or legal; and when we speak of a special property in a thing, we mean some special fixed interest, or right therein, distinct from, and subordinate to, the absolute property or interest of the general owner. Thus, for example, if goods are pledged for a debt, we say, that the pledgee has a special property therein; for he has a qualified interest in the thing, coextensive with his debt, as owner pro tanto. So we say, that artificers and workmen, who work on or repair a chattel, and warehousemen, and wharfingers, and factors, and carriers, have a special property in the chattel confided to them for hire, for the particular purpose of their vocation, because they have a lien thereon for the amount of the hire due to them, and a rightful possession in virtue of that lien, even against the general owner, which he cannot displace without discharging the lien. So the sheriff, who has lawfully seized goods on an execution, may in this sense be said, without, perhaps, straining the propriety of language, to have a special property in the goods, although, more correctly speaking, the goods should be deemed to be in the custody of the law, and his possession a lawful possession, binding the property for the purposes of the execution against the general owner, as well as against wrongdoers. But, it seems a confusion of all distinctions, to say, that a naked bailee, such as a depositary, has a special property, when he has no more than the lawful custody or possession of the thing, without any vested interest therein, for which he can detain the property, even for a moment, against the lawful owner. It might, with far more propriety, be stated, that a gratuitous borrower has a special property in the thing bailed to him, because, during the time of the bailment, he has a right to the use of the thing, and seems thus clothed with a temporary ownership for the purposes of the loan. Yet this has sometimes been a matter denied or doubted.

“Mr. Justice Blackstone has defined an absolute property to be, 'Where a man has solely and exclusively the right, and also the occupation, of any movable chattels, so that they cannot be transferred from him, or cease to be his, without his own act or default;' and qualified, limited, or special property to be such, 'as is not in its nature permanent, but may sometimes subsist, and at other times not subsist.' And, after illustrating this doctrine by cases of qualified property in animals feræ naturæ, and in the elements of fire, light, air, and water, he then proceeds: These kinds of qualification in property depend upon the peculiar circumstances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor.

a person in the actual possession and custody of the goods, whose possession he has wrongfully invaded. The naked

But property may also be of a qualified or special nature, on account of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. As in case of bailment, or delivery of goods to another person for a particular use; as to a carrier to convey to London, to an innkeeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the person delivering, or him to whom it is delivered; for the bailor hath only the right, and not the immediate possession; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both; and each of them is entitled to an action, in case the goods be damaged or taken away; the bailee, on account of his immediate possession; the bailor, because the possession of the bailee is, immediately, his possession also. So also in case of goods pledged or pawned, upon condition, either to repay money or otherwise; both the pledgor and pledgee have a qualified, but neither of them an absolute, property in them; the pledgor's property is conditional, and depends upon the performance of the condition of repayment, &c.; and so, too, is that of the pledgee, which depends upon its non-performance. The same may be said of goods distrained for rent, or other cause of distress; which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distrainor, or the party distrained upon; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant, who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any property or possession, either absolute or qualified, but only a mere charge or oversight.' The cases, here put by the learned Commentator, of qualified property, are clearly cases, where the bailee has an interest or lien in rem. Mr. Justice Lawrence, on one occasion, said: 'Absolute property is, where one, having the possession of chattels, has also an exclusive right to enjoy them, and which can only be defeated by some act of his own. Special property is where he, who has the possession, holds them subject to the claims of other persons. There may be special property in various instances. There may be special property without possession; or there may be special property, arising simply out of a lawful possession, and which ceases, when the true owner appears. Such was the case of Armory v. Delamirie.'

"Now, with reference to the case in judgment, the language of the learned Judge may be strictly correct; for it is by no means clear, that the bankrupt had not an absolute property in the chattels, good against all the world, until his assignees asserted some title to it. The case cited, of Armory v. Delamirie, was the case of goods coming to the party's possession by finding, where he might justly be said to be entitled to it, as well as possessed of it, as absolute owner, against all the world, until the rightful owner appeared and claimed it; and if it was never claimed, his title as finder remained

possession of goods with claim of right, is sufficient evidence of title, against one who shows no better right. Hence the sheriff, who has attached goods, may maintain this action against one who takes them from his possession, or from that of his bailee for mere custody.2

absolute. The case of a naked depositary does not seem to have been here presented to the mind of the learned Judge. Indeed, there is no small refinement and subtilty in suggesting, that a person, lawfully in possession of a thing, has, at the same time, a special property therein against strangers, and no property at all against the true owner. What sort of special property is that which has no existence against the owner of the thing, and yet, at the same time, has an existence against other persons? Can there be property, and no property, at the same time? If the language were, that, when a party has a right of possession, that right cannot lawfully be violated by mere wrongdoers; but, if violated, it may be redressed by an action of trespass or trover, it would be intelligible. If the language were, that a person may have a present temporary or defeasible property in a thing, subject to be devested by the subsequent claim of the rightful owner under his paramount title, (such as in the case of the finder of chattels,) or a temporary property not special, which is to become absolute, or extinguished, by future events, (such as the possession of an abstract of the title of the vendor by the vendee, under a contract for a sale and conveyance of real estate,) there would be little difficulty in comprehending the nature and quality of the right, as a jus in re. It would be a present fixed right of property, subject to be devested or destroyed by matters in futuro. In short, it would be a defeasible, but vested interest in rem. But in the case of a naked deposit, by the very theory of the contract, the bailor never means to part for a moment with his right of property, either generally or specially, but solely with his present possession of it; and the undertaking of the bailee is not to restore any right of property, but the mere possession to the bailor. It is this change of possession, which constitutes the known distinction between the custody of a bailee, and that of a mere domestic servant; for, in the latter case, there is no change whatever of possession of the goods, but the possession remains in the master, and the servant has but a charge, or oversight; whereas, in the case of a bailee, there is a positive change of possession. The true description of the right conferred on a naked bailee, is that, which Mr. Justice Blackstone, in the passage before cited, calls a 'possessory interest,' or right of possession, in contradistinction to a general or special property." See Story on Bailments, § 93, g, h, i.

1 Sutton v. Buck, 2 Taunt. 302; Armory v. Delamirie, 1 Str. 505; Burton v. Hughes, 2 Bing. 173; Giles v. Grover, 6 Bligh, 277; Story on Bailments, § 93, d, e, f; Duncan v. Spear, 11 Wend. 54; Faulkner v. Brown, 13 Wend. 63.

2 Wilbraham v. Snow, 2 Saund. 47; Story on Bailments, § 93, e, ƒ;