either be in actual possession, or have a right to immediate possession, at the time of the conversion.

And even a naked possession is sufficient against any one, who has no right even to that, as by the finder of a jewel. So where a man, under pretence of right, cuts down wood, though he has no legal right to the wood, he may maintain Trover against a stranger for taking it away. See 3 Wils. 336.

A lessor may maintain Trover for timber cut down by the lessee, See Cro. Car. 242, 2 Buls. 135, contra.

Where a servant converts goods to his master's use, with or without his authority, Trover may be maintained against the master. 1 Wils. 328.

So, where a servant to a pawnbroker, received a pawn for his master and lost it, it was held, Trover might be maintained against the master. Salk. 141.

But one tenant in common cannot maintain Trover against another, even if a stranger be joined with the defendant, 1 Term Rep. 658, because one has as good right to the possession as the other. But if one destroys the common property, Trover may be maintained against him by the other.

In Weld v. Oliver, 21 Pick. 559, it was held, if one tenant in common of personal property, sells it, the sale will amount to a conversion, and the other tenant in common may maintain Trover for his undivided part, against his co-tenant.

If the purchaser sells the property again, Trover may be maintained against him, for the conversion of the undivided moiety of the party injured. Ibid. In that case the measure of damages, will be the value of the property at the time, when such purchaser sells, and not the value, when he bought. Ibid.

If such tenant in common, on a sale by his co-tenant, and a re-sale by the purchaser, presents a bill to the purchaser for one half of the price, at which he has re-sold the property, it will not be a waiver of his right to bring Trover against him. Ibid.

Trover may be maintained against husband and wife, supposing the conversion (which is a tort) done by both, but the declaration should allege, that they converted the goods "to the husband's use," since "to their use," is bad. Yelv. 165; 2 Cro. 661.

If goods come successively to the hands of several, Trover may be maintained against any one of them, who converts the goods to his own

use.

It has been said, defendant cannot justify detaining goods till money laid out on them is paid, but the money may be deducted from the damages. But this is absurd. For if the defendant was warranted in laying out the money on the goods, he would have a lien on them for the amount, and so there would be no cause of action against him, until the amount was tendered. On the other hand, if he laid out the money on the goods without any authority, it would be a payment in his own wrong, and consequently, it ought not to be deducted from the damages, any more than if there had been a tender and refusal.

If money (which has no ear mark) is stolen from A and paid over to B, Trover cannot be maintained against B. 1 Salk. 284.

But there can be no doubt, if a bag of money were stolen from A and delivered to B, without notice and without consideration, Trover

might be maintained for it after demand and refusal, as well as for any thing else.

An indorsee of a bill of lading, or any consignee of goods, may maintain trover for them before they have come into possession, as the property is transferred by the indorsement or consignment. However, in particular cases, the consignor may stop the goods in transitu, before they come to the consignee's hands. 1 T. R. 205, 745; 2 T. R.

63.

In general, one tenant in common, or joint tenant, or a partner, cannot maintain Trover against his cotenant, or copartner; for the possession of one is the possession of all; and though, where there are two tenants in common of land, one in fee, and the other for years, and the tenant in fee has cut down trees, which the tenant for years has converted to his own use, the tenant in fee may maintain Trover against the tenant for years for the trees, it is because, that as respects the trees, they are not tenants in common, for the trees following the inheritance, belong wholly to the tenant in fee. See Bul. N. P. 35; 4 Camp. 472.

But if one tenant in common destroys the thing held in common, it is a conversion in law to his own use, and the other may maintain Trover. Bul. N. P. 34.

Trover lies against the master for goods delivered to a servant in the course of his employment; otherwise, not; for if otherwise, quoad hoc, he is not a servant to his master. 1 Ld. Raym. 738; Salk.

141.

If A sells goods, and contracts to deliver them at a certain time to B, but does not deliver them at that time, still B cannot maintain Trover until after demand and refusal. 4 Esp. C. 156.

4. What amounts to a conversion.

And

It seems, wherever A is lawfully in possession of goods of B, which he is bound to deliver to B, on request, such demand and A's refusal, are sufficient evidence of conversion, for the jury to find a verdict in plaintiff's favor; though, if the facts are found specially by a jury, the court are not warranted in determining it to be a conversion. therefore, evidence of a demand and refusal are always in such cases, considered sufficient to maintain this action. But a bare non-delivery,. though accompanied with false pretences and excuses, is not such a refusal. 4 Esp. C. 157.

The use of a thing found, it is said, will amount to a conversion, as riding a horse, milking a cow, &c. But this must depend upon the circumstances in each particular case. If the thing found is consumed by using it, as a barrel of flour, it would obviously be a conversion. But if a man should take up a stray horse, and without knowing who was the owner, should ride him every day, till he received notice, and then delivered him over to the owner, it seems unreasonable that he should be liable for the temporary conversion of him, in an action of Trover, in which he could have no set-off against the horse's keeping. Thus A takes up B's horse as an estray, keeps it for a month, and uses it every day, without notice that B is the owner, then the horse dies; B discovers that A has used his horse, shall B have an action of

Trover against A, and recover in this form of action, the value of the horse's labor, when B can have no remedy whatever for the horse's keeping, the horse being dead, upon which В would have had a lien, if alive? It seems unreasonable. But if B is driven to his quantum valebat for the labor of the horse, there is nothing unreasonable that A should deduct from it (having a lien on the horse and consequently on his labor) the amount of charges for his keeping; though, for want of a promise express or implied, he might not be able to recover it in an action of Assumpsit. The same remark applies to milking a cow, which, however, is acknowledged not to amount to a conversion; since it is for the preservation of the beast. But even here it is reasonable, that the owner of the cow should be entitled to the value of the milk, in an action of Assumpsit, deducting the charges of the keeping the cow. Sed quære.

To waste, consume, spoil, or misuse any thing found, bailed, entrusted, or that one is in possession of, and which belongs to another, is a conversion. As to throw paper found, into water; for a carrier to break open a box, and take goods to himself; to take out part of the liquor from a vessel and fill it up with water. This last is a conversion of the whole liquor.

But suffering things found, bailed, &c. to spoil, or be lost, through mere negligence, is not a conversion, and Trover is not the remedy, but a special action on the case (if any.) But in New York it has been decided, if A admits that he has had the goods of the plaintiff, but has lost them, this confession will be sufficient evidence of conversion. 1 Johns. C. 406. Quære.

And if A, having a right to remove goods, does so; and, not being replaced they are lost, this is no conversion, and Trover for them cannot be maintained against A.

Where the taking of the plaintiff's goods is tortious, it is not necessary to prove an actual conversion; but Trover may be maintained, though it is evident, there has been no conversion to the defendant's use; as where a servant takes goods and converts them to his master's use; in which case, Trover may be maintained against the servant; and, in the case of a tortious seizure of plaintiff's goods by revenue officers, who are liable to this action, though the goods are not converted to their own use. 3 Wils. 146; 2 Str. 943; 2 Wils. 328.

If a carrier should carry goods to a wrong person by mistake, Trover may be maintained against the carrier; for it is a conversion. Or Trover might be maintained against such stranger, after a demand and refusal, either by the carrier, or the proper person. 2 B. & A. 702; Peake's N. P. C. 49. But in the case of the carrier, it would be safer to join one count specially on the case, with the count in Trover. A fortiori, if A, contrary to orders, delivers T's goods to C, it is such a conversion in A, as will support Trover against him by T. 4 T. R. 260.

Where goods are detained by virtue of a lien on them, a demand and refusal will not be such a conversion as will maintain Trover. Otherwise, if there be no lien. 4 Bur. 2221.

It is held, if H lends his oxen to P, to plough his land, and C drives them away, Р may maintain Trover for them. See in the notes to Wilbraham v. Snow, 2 Saund. 47, a.

Quare of the amount of damages to be recovered by P in such

case.

If the value of the oxen is recovered by P, the oxen become the property of C. But a judgment in an action between P and C cannot bind H, who will still have an action of Trover against C for the oxen, for aught that appears; or, shall he have an action against P for the value of the oxen? But, in such case, it seems to be the opin ion of some, that the recovery by P, the bailee, will bind H. See Dane's Abr. ch. 87, art. 8, sec. 8.

5. Of the declaration in Trover.

The declaration should set out property or possession of the goods in the plaintiff, alleging a value, together with a time and place of con version. It may allege that the goods came to the defendant's hands by finding, or came to his hands generally, without more. If the action is brought by an administrator in that capacity, the property may be alleged in the testator, whether the conversion was before or after his death, if before administration granted; but if any one takes the property belonging to the estate, after administration, the administrator may declare on his own possession. See 1 T. R. 480.

6. Of the amount of damages.

In Trover, the value of the goods at the time of conversion, with interest to the time of obtaining judgment, is the measure of damages. In Massachusetts, the court adhere to this rule, even in cases, where the plaintiff has bought an article at a stipulated price, and the defendant refuses to deliver it on demand, and afterwards sells it at a great advance, after action brought, but before trial. 4 Pick. 466. This appears to be impolitic and inequitable. Impolitic, because it holds out an inducement to practise dishonesty, where there is a prospect, that an article sold, but not delivered, will rise in value, beyond the price paid for it, and interest; and inequitable, because the plaintiff is deprived of the advantage of a rise in the market, which among merchants is one of the principal inducements to purchase; and the defendant derives an advantage from his own fraudulent conduct; since, while the article remains in his possession, he has the option, either to deliver up the article, if the market falls, at the price agreed, or keep it, if the market rises, and pay back merely the price and interest. This is giving him an unfair advantage. The fair principle would be, that the defendant should pay the purchase money and interest, at least, and if the plaintiff could show, that the defendant had made more of it before action brought, that the damages should be increased accordingly.

If the property is restored, it goes in mitigation of damages. If it is recovered, but the plaintiff has been at any expense in recovering it, as by offering a reward, &c. the amount of those expenses must be deducted from the value of the article, when returned. See Greenfield Bank v. Leavitt, 17 Pick. 1.

DECLARATIONS IN TROVER.

For a sloop and her cargo, according to a schedule annexed. For that, at &c., on &c., the plaintiff was possessed of a

certain sloop, called the S, burthened tons, and of the value of $, with her cargo, being the goods and chattels contained in the schedule hereto annexed, of the several values thereto annexed, as of his own goods and chattels, and being so possessed, thereafterwards, on the same day, lost the same, and the same thereafterwards, on the same day, came into the hands and possession of the said D, E, and F, by finding; yet the said D, E, and F, though they well knew the same to belong to said plaintiff, yet intending to injure and defraud him thereof, refused to deliver the same to said plaintiff, though thereto requested, but thereafterwards, on the same day, converted the same to the use of the said D, E, and F, all which is to the damage, &c. Norwood v. Foster, Essex, 1785. T. PARSONS.

For a chest and goods.

For that the plaintiff, on &c., at &c., was possessed of a chest and several goods and clothes therein contained, in the schedule hereto annexed, particularly mentioned, all of the value of $; and being so thereof possessed, thereafterwards, on the same day, lost the same chest and goods, which thereafterwards, on the same day, came into the hands and possession of the said D, by finding; yet the said D, well knowing the same to be the proper goods and chattels of the plaintiff, and of right to appertain to him, though requested, hath not delivered the same to the plaintiff, but thereafterwards, on the same day, converted the same to his own use; to the damage, &c.

For thirty-five hogsheads of sugar.

WC
D

For that the plaintiff, on &c., at &c., was possessed of thirty-five hogsheads of sugar marked of the value of $5000, as of his own sugar; and being so possessed thereof, the plaintiff thereafterwards, on the same day, casually lost the same sugar, which same sugar thereafterwards, on the same day, came into the possession of the said D by delivery; yet the said D, well knowing the said sugar to be the property of the plaintiff, but intending to defraud and injure him iu this behalf, has not returned said sugar to the plaintiff, though requested, but thereafterwards, to wit, on the same day, converted the same to his, the said D's own use. Bartlett v. Chase, S. J. C. Essex, 1802. T. PARSONS.