property, nevertheless, passes to him, and the debtor is for ever absolved from the obligation.1 § 611. Change of domicile. By the Roman law, where the house or shop of the creditor was designated or ascertained as the intended place of payment, and the creditor afterwards and before payment changed his domicile or place of business to another town or place, less convenient to the debtor, the creditor was permitted to require payment at his new domicile or place, making compensation to the debtor for the increased expense and trouble thereby caused to him. But by the law of France, the debtor may in such case require the creditor to nominate another place, equally convenient to the debtor; and, on his neglecting so to do, he may himself appoint one; according to the rule, that nemo, alterius facto, prægravari debet.2 Whether, in the case of articles not portable, but cumbrous, such removal of domicile may, at common law, be considered as a waiver of the place, at the election of the debtor, does not appear to have been expressly decided. (a) § 611 a. Mode of tender of goods. In regard to the manner of tender of goods, it is well settled that a tender of goods does not mean an offer of packages containing them; but an offer of those 1 2 Kent, Comm. 507-509; Co. Lit. 210 b; Aldrich v. Albee, 1 Greenl. 120; Howard v. Miner, 2 Applet. 325; Chipman on Contracts, pp. 51-56; Lamb v. Lathrop, 13 Wend. 95. Whether, if the creditor is out of the State, no place of delivery having been agreed upon, this circumstance gives to the debtor the right of appointing the place, quare; and see Bixby v. Whitney, 5 Greenl. 192; in which, however, the reporter's marginal note seems to state the doctrine a little broader than the decision requires, it not being necessary for the plaintiff, in that case, to aver any readiness to receive the goods, at any place, as the contract was for the payment of a sum of money, in specific articles, on or before a day certain. Poth. on Oblig. Nos. 238, 239, 513. 3 See Howard v. Miner, 2 Applet. 325, 330. (a) Where a person designedly absents himself from home for the fraudulent purpose of avoiding a tender, he is estopped from objecting that no tender was made. Southworth v. Smith, 7 Cush. (Mass.) 393; Gilmore v. Holt, 4 Pick. (Mass.) 258. And where the person whose duty it is to make the tender uses due diligence, but is unable to find the person to whom the tender should be made, or any person authorized to act in his behalf, he accomplishes all the law requires. Southworth v. Smith, ubi supra. And where the obligee, in a bond, was to "tender a conveyance" within a specified time, and within that time went to the house of the obligor with such conveyance duly exe cuted, but did not tender the same, because the wife of the obligor informed him that the obligor was out of the State, and he in fact was out of the State, it was held that such absence excused the obligee from further performance of his part; that he was not bound to inquire if the obligor had left any agent to act for him in his absence; it being the duty of the obligor to appoint an agent to act for him in his absence, and to notify the obligee thereof. Tasker v. Bartlett, 5 Cush. (Mass.) 359363. See also Stone v. Sprague, 20 Barb. (N. Y.) 509; Holmes v. Holmes, 12 Id. 137; Hewry v. Raiman, 25 Penn. St. 354. packages, under such circumstances that the person who is to pay for the goods shall have an opportunity afforded him, before he is called upon to part with his money, of seeing that those presented for his acceptance are in reality those for which he has bargained.1 1 Isherwood v. Whitmore, 11 M. & W. 347, 350. And see s. c. 10 M. & W. 757. TRESPASS. § 612. Trespass to property. The evidence in actions of trespass against the person having already been considered, under the head of Assault and Battery, it remains in this place to treat of the evidence applicable to actions of trespass upon property, whether real or personal. § 613. Gist of action injury to possession. Though the right of property may and often does come in controversy in this action, yet the gist of the action is the injury done to the plaintiff's possession. (a) The substance of the declaration therefore is, that the defendant has forcibly and wrongfully injured the property in the possession of the plaintiff; and under the general issue the plaintiff must prove, (1) that the property was in his possession at the time of the injury, and this rightfully, as against the defendant; and (2) that the injury was committed by the defendant with force. § 614. Possession. (1) The possession of the plaintiff may be actual or constructive. And it is constructive when the property is either in the actual custody and occupation of no one, but rightfully belongs to the plaintiff, or when it is in the care and custody of his servant, agent, or overseer, or in the hands of a bailee for custody, carriage, or other care or service, as depositary, mandatary, carrier, borrower, or the like, where the bailee or actual possessor has no vested interest or title to the beneficial use and enjoyment of the property, but, on the contrary, the (a) Tc constitute a trespass there must be a disturbance of the plaintiff's possession; which in the case of personal property may be done by an actual taking, a physical seizing, or taking hold of the goods, removing them from their owner, or by exercising a control or authority over them inconsistent with their owner's possession. Holmes v. Doane, 3 Gray (Mass.), 329, 330; Coffin v. Field, 7 Cush. (Mass.) 355; Codman v. Freeman, 3 Id. 306. The question who is actually in possession of the land or chattels is one of fact for the jury. Berkey v. Auman, 91 Pa. St. 481. If the plaintiff relies on a paper title to land without possession, anything which shows that he has no title will defeat his action, which is based solely on ownership. Thus, a tax title, which is prima facie a paramount title, will disprove a title which is not supported by possession. Tolles v. Duncombe, 34 Mich. 101; Padgett v. Baker, 1 Tenn. Ch. 222; ante, § 303, n. So, when the plaintiff relied on a landlord's lien on chattels and a distress warrant, but the jury found that there was no actual possession, a tax lien will be sufficient defence for the defendant. Dunning v. Fitch, 66 Ill. 51. owner may take it into his own hands, at his pleasure. Where this is the case, the general owner may sue in trespass, as for an injury to his own actual possession, and this proof will maintain the averment.1 (a) The general property draws to it the possession, where there is no intervening adverse right of enjoyment. And this action may also be maintained by the actual possessor, upon proof of his possession de facto, and an authority coupled with an interest in the thing, as carrier, factor, pawnee, or sheriff.2 A tenant at will, and one entitled to the mere profits of the soil, or vestura terræ, with the right of culture, may also sue in trespass, for an injury to the emblements to which he is entitled.3 (b) § 615. Same subject. The general owner has also a constructive possession, as against his bailee or tenant, who, having a special property, has violated his trust by destroying that which was confided to him. Thus, if the bailee of a beast kill it, or if a joint-tenant or tenant in common of a chattel destroy it, or if 1 1 Chitty on Plead. 188, 195 (7th ed.); Lotan v. Cross, 2 Campb. 464; Bertie v. Beaumont, 16 East, 33; Aikin v. Buck, 1 Wend. 466; Putnam v. Wyley, 8 Johns. 432; Thorp v. Burling, 11 Johns. 285; Hubbell v. Rochester, 8 Cowen, 115; Root v. Chandler, 10 Wend. 110; Oser v. Storms, 9 Cowen, 687; Wickham v. Freeman, 12 Johns. 183; Smith v. Milles, 4 T. R. 480; Corfield v. Coryell, 4 Wash. 387; Hingham v. Sprague, 15 Pick. 102; Starr v. Jackson, 11 Mass. 519; Walcott v. Pomeroy, 2 Pick. 121. 2 Wilbraham v. Snow, 2 Saund. 47; Id. 47, a, b, n. (1), by Williams; Colwill v. Reeves, 2 Campb. 575. See also Leisherness v. Berry, 38 Me. 80. 8 Co. Litt. 4b; Wilson v. Mackreth, 3 Burr. 1824; Crosby v. Wadsworth, 6 East, 602; Stammers v. Dixon, 7 East, 200; Stewart v. Doughty, 9 Johns. 108; Stultz v. Dickey, 5 Binn. 285; Austin v. Sawyer, 9 Cowen, 39. (a) Warren v. Cockran, 30 N. H. 379; Heath v. West, 8 Id. 101; Schloss v. Cooper, 27 Vt. 623 Foster v. Pettibone, 20 Barb. (N. Y.) 350; Bailey v. Massey, 2 Swan (Tenn.) 167; Browning v. Skillman, 4 Zabr. (N. J.) 351; Thomas v. Snyder, 23 Penn. St. 515. But if there is an adverse possession, it destroys the constructive possession. By a legal fiction, possession follows the title in the absence of an actual possession by any one, and this constructive possession is sufficient to enable the owner to maintain trespass against a wrong doer. But there can be no constructive possession of lands, of which third parties are in actual adverse possession. Ruggles v. Sands, 40 Mich. 559; Davis v. White, 27 Vt. 751. Thus, where the officers of a school district had been for several years in actual, entire, and undisturbed possession of land Car which was not owned by them, and they (b) Morrison v. Mitchell, 4 Houst. (Del.) 324; Kellenberger v. Sturtevant, 7 Cush. (Mass.) 467. a tenant at will cuts down trees, the interest of the wrong-doer is thereby determined, and the possession, by legal intendment, immediately reverts to the owner or cotenant, and proof of the wrongful act will maintain the allegation that the thing injured was in his possession.1 So, if one enters upon land, and cuts timber under a parol agreement for the purchase of the land, which he afterwards repudiates as void under the Statute of Frauds, his right of possession also is thereby avoided ab initio, and is held to have remained in the owner, who may maintain trespass for cutting the trees. And generally, where a right of entry, or other right of possession, is given by law, and is afterwards abused by any act of unlawful force, the party is a trespasser ab initio ; 3 but if the wrong consists merely in the detention of chattels, beyond the time when they ought to have been returned, the remedy is another form of action.* § 616. Same subject. But where the general owner has conveyed to another the exclusive right of present possession and enjoyment, retaining to himself only a reversionary interest, the possession is that of the lessee or bailee, who alone can maintain an action of trespass for a forcible injury to the property; the remedy of the general owner or reversioner being by an action upon the case. (a) Thus a tenant for years may have an action of trespass for cutting down trees; and a tenant at will may sue 1 Co. Litt. 57 a; Id. 200 a, b; Countess of Salop v. Crompton, Cro. El. 777, 784; s. c. 5 Co. 13; Phillips v. Covert, 7 Johns. 1; Erwin v. Olmstead, 7 Cowen, 229; Campbell v. Procter, 6reenl. 12; Daniels v. Pond, 21 Pick. 367; Allen v. Carter, 8 Pick. 175; Keay v. Goodwin, 16 Mass. 1. Trespass will lie by one tenant in common against another, for any act of permanent injury to the inheritance, such as making pits in the common, digging turfs, and the like, when not done in the lawful exercise of a right of common. Wilkinson v. Haggarth, 11 Jur. 104. A tenant at will, by refusing to quit the premises, becomes a trespasser. Ellis v. Paige, 1 Pick. 43; Rising v. Stannard, 17 Mass. 282. 2 Suffern v. Townsend, 9 Johns. 35. 8 The Six Carpenters' Case, 8 Co. 145; Adams v. Freeman, 12 Johns. 408; Malcom v. Spoor, 12 Met. 279; Tubbs v. Tukey, 3 Cush. 438. Gardiner v. Campbell, 15 Johns. 401. 5 1 Chitty on Plead. 195, 196 (7th ed.); Lienow v. Ritchie, 8 Pick. 235. • Evans v. Evans, 2 Campb. 491; Blackett v. Lowes, 2 M. & S. 499. (a) Trespass will not lie by one tenant in common of a chattel against the others for breaking and entering the close and taking crops. Owen v. Foster, 13 Vt. 263; Badger v. Holmes, 6 Gray (Mass.), 118; Silloway v. Brown, 12 Allen (Mass.), But it will for an actual ouster. Erwin v. Olmsted, 7 Cow. (N. Y.) 129; McGill v. Ash, 7 Pa. St. 397; Thompson v. Gerrish, 57 N. H. 85. As the reason 30. of this is that the plaintiff has not an exclusive right of possession, evidence of an informal partition which has been carried out by the tenants in fact, is admissible, as a parol partition followed by possession is sufficient to sever the possession so as to give to each tenant the right to the exclusive possession of his property. Grimes v. Butts, 65 Ill. 347; Tomlin v. Hilyard, 43 Ill. 300. |