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§ 639. Title to bill of exchange, &c. Where the plaintiff claims title as the holder of a bank-note, bill of exchange, promissory note, exchequer bill,' government bond made payable to the holder, or other negotiable security, whether payable to bearer or to order, and indorsed in blank ; it is sufficient for him to show that he took it bona fide and for a valuable consideration ; for this vests the title in him, without regard to the title or want of title in the person from whom he received it. It was formerly held that if the latter came to the possession by felony, or fraud, or other mala fides, it was incumbent on the plaintiff to show that he had used due and reasonable caution in taking it; but though gross negligence in the transferee may still be shown, as evidence of fraud, though not equivalent to it, yet his title is now held to depend, not on the degree of caution which he used, but on his good faith in the transaction. (a) If the security was lost by the plaintiff, and has been found and converted by the defendant, who has paid part of the proceeds to the plaintiff, the acceptance


1 Wookey v. Poole, 4 B. & Ald. 1. Gorgier v. Mieville, 3 B. & C. 45.

8 Story on Bills, SS 415, 416; Story on Promissory Notes, 193–197, 382 ; Bayley on Bills, pp. 138, 139, 535–539 (6th ed.); Chitty & Hulme on Bills, pp. 254-257; Goodman v. Harvey, 4 Ad. & El. 870; Uther v. Rich, 10 Ad. & El. 784. See ante, § 172.

without aid from the illegal transaction, the auctioneer, although the latter did not the claim will be sustained. Tenant v. participate in the fraud of the mortgagor, Elliott, 1 Bos. & P. 3; Merritt v. Millard, and did not in fact know of the existence 4 Keyes, 208; Woodworth v. Bennett, of the mortgage. Coles v. Clark, 3 Cush. 43 N. Y. 273 ; Chitty, Cont. 657. And (Mass.) 399. See also Flanders v. Colby, if the plaintiff in trover can make out 28 N. H. 34 ; Moody v. Whitney, 34 Me. his right to possession without intro- 563 ; Cartland v. Morrison, 32 Me. 190 ; ducing evidence relating to the illegal Cobb •v. Dows, 9 Barb. (N. Y.) 230. contract, he can recover ; but if he relies on Trover will not lie against a bona fide a constructive possession of the goods he purchaser, without notice, of a fixture must fail, since a constructive possession wrongfully severed from the freehold depends upon the legal title under which (Cope v. Romeyne, 4 McLean, C. C. 384); he claims, and this legal title is based on nor for fixtures which a tenant has left the illegal transaction, so that in intro- annexed to the freehold, with the leave ducing his evidence of title he would be of the landlord, after he has quit the posobliged to touch upon the illegal transac- session. Ruffey v. Henderson, 8 Eng. Law tion. Clements v. Yturria, 81 N. Y. 285. & Eq. 305. A mortgagee having the right of imme. (@) Where, in an action of trover, it was cliate possession of the mortgaged goods proved that the State treasurer took drafts was induced by the fraudulent representa. payable to his order in payment of taxes, tions of the mortgagor to permit the though he was authorized only to take property to remain in the mortgagor's money, and the drafts were indorsed by possession for a certain period. During his clerk and put in a bank for collection, this period, the mortgagor, with intent to it was held that the State could recover defraud the mortgagee, sent the goods against the bank in an action for the conto an auctioneer, who sold them, and version of the drafts, its possession being delivered the proceeds of the sale to the sufficient as against the bank. People v. mortgagor ; and it was held that the Bank of North America, 75 N. Y. 547. mortgagee could maintain trover against

of such part is no waiver of the tort, but trover still lies for the security.

$ 640. Possession. There must also be shown in the plaintiff a right to the present possession of the goods. If he has only a special property, there must ordinarily be evidence of actual possession ;(a) but the general property has possession annexed to it by construction of law. If, however, there is an intermediate right of possession in another person as lessee, the general owner cannot maintain this action. Therefore, a lessor of chattels cannot have an action of trover against one who has taken them from the possession of his lessee, so long as the right of the lessee remains in force. (6) But if the interest of the tenant or possessor is determined, whether by forfeiture or otherwise, the

1 Burn v. Morris, 4 Tyrw. 485.

2 Coxe v. Harden, 4 East, 211 ; Hotchkiss v. McVickar, 12 Johns. 407; Sheldon v. Soper, 14 Johns. 352 ; Dennie v. Harris, 9 Pick. 364. A factor to whom goods have been consigned, but which have not yet come to hand, may maintain trover for them ; and this is said to contradict, or at least to form an exception to, the rule stated in the text. See Fowler v. Brown, 1 B. & P. 47, per Eyre, C. J. But the possession of the carrier being the possession of the factor, whose servant he is for this purpose, the case would seem on this ground to be reconcilable with the rule. Bull. N. P. 36 ; Dutton v. Solomonson, 3 B. & P. 584 ; Dawes v. Peck, 8 T. R. 330 ; Chitty on Contr. 11th Am. ed. p. 316 ; Story on Contr. 5th ed. SS 436, 509.

3 Gordon v. Harper, 7 T. R. 12, per Grose, J. ; 2 Saund. 47 a, n. (1); Ayer v. Bartlett, 9 Pick. 156; Foster v. Gorton, 5 Pick. 185.

4 Ibid. ; Smith v. Plomer, 15 East, 607 ; Wheeler v. Train, 3 Pick. 255; Pain v. Whittaker, Ry. & M. 99 ; Fairbank v. Phelps, 22 Pick, 535; supra, § 616. And see Farrant v. Thompson, 5 B. & A. 826. But an intervening right by way of lien, such as that of a carrier, will not deprive the general owner of this remedy, against a wrong-doer. Gordon v. Harper, 7 T. R. 12 ; Nichols v. Bastard, 2 C. M. & R. 659 ; Rugg v. Barnes, 2 Cush. 591 ; Harvey v. Epes, 12 Gratt. 153.

(a) Clark v. Draper, 19 N. H. 419. sold the wheat crop, but refused to de. Where one had raked the manure scat. liver the plaintiff his share thereof, on the tered in a public street into heaps, pre- ground that the plaintiff had fraudulently paratory to its removal, he may maintain kept back part of the crops of the precedtrover against one who, twenty-four hours ing year. "It was held that under the after it is gathered, carts it off. Haslem terms of the agreement the right of posses0. Lockwood, 37 Conn. 500.

sion was in the defendant, and that the (6) The same difficulty arises as to evidence would not support an action of the right of possession to crops where trover. Cf. Koob v. Amman, 6 Ill. App. the farm is worked on shares, which 160. was indicated in the title Trespass, ante, Where the owner of a chattel leases it, § 616. In Lehr v. Taylor, 90 Pa. St. and then mortgages it, the mortgagee can381, the evidence was that the plaintiff not maintain trover against the lessee worked the defendant's farm on shares until the lease has expired. Forth v. under a lease. By the terms of the lease Pursley, 82 Ill. 152. Where the plaintiff he was to have half the grain, but the consigned goods to a third party to be right of possession thereof in the fields or paid for as they were sold by him, the in the barn was to be in the defendant legal possession of them is in the conuntil divided, and his share delivered to signee (Fairbank v. Phelps, 22 Pick. him, under the terms of the lease. The (Mass.) 535), and the plaintiff cannot plaintiff planted crops and then moved off maintain trover for the goods (Hardy v. the farm. The defendant harvested and Munroe, 127 Mass. 64).

general owner may sue. Thus, if the tenant has unlawfully sold the machinery demised with a mill;1 or, if a stranger cuts down and removes a tree, during a term, — the general owner may maintain this action against the purchaser or stranger. Upon the same general principle of right to the immediate possession, the purchaser of goods not sold on credit has no right to this form of remedy, until he has paid or tendered the price ;3 even though he has the key of the apartment where the goods are stored, if the vendor still retains the general control of the premises. So, if the purchaser of lands, being permitted to occupy until default of payment, the title remaining in the vendor for his security, cuts down and sells timber without leave from the vendor, the latter may have trover against the purchaser. And if the bailee of goods for a special purpose transfers them to another in contravention of that purpose, the remedy is the same. (a) The bailee of materials to be manufactured may also have this action against a stranger, though the goods were taken by the defendant from the possession of a third person, whom the plaintiff had hired to perform the work. So, a ship-owner may maintain trover for the goods shipped, against the sheriff who attaches them, without payment or tender of the freight due. (6)

| Farrant v. Thompson, 5 B. & A. 826. See also Ashmead v. Kellogg, 23 Conn. 70.

? Berry v. Heard, Cro. Car. 242 ; Palm. 327; 7 T. R. 13; Blaker v. Anscombe, 1 New Rep. 25.

8 Bloxam v. Saunders, 4 B. & C. 941 ; Miles v. Gorton, 4 Tyrw. 295. 4 Milgate v. Kebble, 3 Man. & Gr. 100. 5 Moores v. Wait, 3 Wend. 104.

& Wilkinson v. King, 2 Campb. 335 ; Loeschman v. Machin, 2 Stark. 311. But if a consignee of goods for sale, at a price not less than a certain sum, sells them for a less sum, it is not a conversion, but the remedy is by a special action on the case. Serjeant v. Blunt, 16 Johns. 74.

* Eaton v. Lynde, 15 Mass. 242 ; Bryant v. Clifford, 13 Met. 138. 8 De Wolf v. Dearborn, 4 Pick. 466.

(a) A consignee, having authority to tel, this is evidence of a conversion to sell property for the owner, sold it as the his own use, and the jury should find, as a property of a person other than the owner, question of fact, whether he did so conand such sale was held a conversion. Co- vert it. Goell v. Smith, 128 Mass. 238 ; vell v. Hill, 2 Selden (N. Y.), 374. So, Harvey v. Epes, 12 Gratt. (Va.) 153. where the evidence in an action of trover Where, however, one delivers goods to was that a bailee of the goods to hold them another to hypothecate, he thereby im. for a certain time shipped them by express, pliedly authorizes a sale if the loan is not he was held liable for the conversion. Ed. paid when it becomes due. Duffield v. wards v. Frank, 40 Mich. 616. So, if the Miller, 92 Pa. St. 286. owner of a chattel parts with the posses- (b) A person to whom a letter sent by sion of it upon an agreement of lease or mail is addressed may maintain an action bailment, and one of the terms of the bail- of trover in a State court, against the ment is violated in a manner which tends postmaster who unlawfully refuses to deto show the assumption by the bailee of liver it. Teal v. Felton, 12 How. (U. S.) dominion over and ownership of the chat. 284.

$ 641. Title as executor, &c. An executor or administrator has the property of the goods of his testator or intestate vested in him before his actual possession; and therefore may have trover or trespass against one who has previously taken them. And though he does not prove the will, or receive letters of administration, for a long time after the death of the testator or intestate, yet the property will be adjudged to have been in him, by relation, immediately upon the decease. If he relies on his constructive possession, and a conversion after the death of the testator or intestate, he must produce and prove at the trial his letters testamentary, or of administration.(a)

$ 642. Conversion. (2.) The plaintiff must, in the next place, show that the defendant has converted the goods to his own use. A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff, under a claim of title, inconsistent with his own. (6) It may therefore be either direct

1 1 Com. Dig. 341, tit. Administration, B. 10 ; Id. 425, tit. Action upon the Case upon Trover, B ; Rex v. Horsley, 8 East, 410, per Ld. Ellenborough ; Doe v. Porter, 3 T. R. 13, 16 ; Long v. Hebb, Sty. 341 ; Locksmith v. Creswell, 2 Roll. Abr. 399, pl. 1 ; Anon., Comb. 451, per Holt, C. J. ; 2 Selw. N. P. 777 (10th ed.); Patten v. Patten, 1 Alcock & Napier, 493, 504 ; Wilson v. Shearer, 9 Met

. 504. In Woolley v. Clark, 5 B. & Ald. 744, it was said, that, as to the administrator, his title being derived wholly from the Ecclesiastical Court, no right vested in him until the grant of letters of administration ; but the resolution of this point was not essential to the decision in that case, as the defendant, who sold the goods as administrator, sold them after notice of the existence of the will, by which the plaintiff was appointed executrix.

2 Robinson v. M'Donald, 2 Kelly, 119.

8 Fouldes v. Willoughby, 8 M. & W. 546–551 ; Keyworth v. Hill, 3 B. & Ald. 685 ; Bristol v. Burt, 7 Johns. 254 ; Murray v. Burling, 10 Johns. 172 ; Hare v. Pearson, 4 Ired. 76 ; Page v. Hatchett, 10 Jur. 634 ; Harris v. Saunders, 2 Strobh. Eq. 370 ; Clark v. Whitaker, 19 Conn. 319; Heald v. Carey, 9 Eng. Law & Eq. 429. But the mere cutting down of trees without taking them away is not a conversion. Mires v. Solebay, 2 Mod. 245.

(a) A receiver appointed by the court in (6) Bray v. Bates, 9 Met. (Mass.) 237 ; the exercise of its equity jurisdiction has Salisbury v. Gourgas, 10 Id. 462 ; Fernald no legal title in the assets which he is ap- v. Chase, 37 Me. 289 ; Fuller v. Tabor, 39 pointed to collect, and without authority Me. 519. Proof that the defendant did of the court he cannot maintain trover some positive wrongful act is necessary to when they have been wrongfully converted support an action of trover. Bromley v. previously to his possession. Yeager v. Coxwell, 2 Bos. & Pul. 438 ; Ross v. JohnWallace, 44 Pa. St. 294. But where the son, 5 Burr. 2825 ; Severin v. Keppell, 4 goods have actually come into his posses. Esp. 156. A sale of personal property by sion, he may maintain trover against one a mortgages before foreclosure is a converwho wrongfully invades such possession, sion for which the mortgagor may maintain and converts the goods. Singerly v. Fox, an action. Spaulding v. Barnes, 4 Gray 75 Pa. St. 112.

(Mass.), 330. To constitute a joint con

or constructive; and of course is proved either directly or by inference. Every unlawful taking, with intent to apply the goods to the use of the taker, or of some other person than the owner, or having the effect of destroying or altering their nature, is a conversion. (a) But if it does not interfere with the owner's dominion over the property, nor alter its condition, it is not. (6) Upon these principles it has been held that if a ferryman wrongfully put the horses of a passenger out of the boat, without further intent concerning them, it may be a trespass, but it is not a conversion; but if he makes any further disposition of them, inconsistent with the owner's rights, it is a conversion. So the taking possession of the bankrupt's goods, by his assignees, is a conversion, as against him, for which he may maintain trover, to try the validity of the commission, without making a demand. So, using a thing without license of the owner is a conversion; as is also the misuse or detention of a thing, by the finder, or other

1 Bull. N. P. 44 ; 2 Saund. 47 g, by Williams; Prescott v. Wright, 6 Mass. 20; Pierce v. Benjamin, 14 Pick. 356 ; Thurston v. Blanchard, 22 Pick. 18. But if a tortious taking has been subsequently assented to by the owner, the remedy in trofer is gone.

Hewes v. Parkman, 20 Pick. 90 ; Rotch v. Hawes, 12 Pick. 136; Clarke v. Clarke, 6 Esp. 61 ; Brewer v. Sparrow, 7 B. & C. 310. Taking the plaintiff's goods by inistake, supposing them to be defendant's own, and a subsequent promise to restore them, the performance of which was neglected, have been held sufficient evidence of a conversion. Durrell v. Mosher, 8 Johns. 445. See further, Harrington v. Payne, 15 Johns. 431.

2 Fouldes v. Willoughby, 8 M. & W. 540. 8 Somersett v. Jarvis, 3 Brod. & Bing. 2.

version of personal property, the acts of any knowledge of wrong-doing, supposing the several defendants need not be contem- the articles to belong to or to be rightfully poraneous, if their acts and purposes all in the possession of the person from whom tend to the same result. Cram v. Thissell, the same are received. Burditt v. Hunt, 35 Me. 86. Trover will lie to recover the 25 Me. 419; Fifield v. Maine Central R. R. value of coal dug by the owner of land, Co., 62 Me. 77, 82. through a mistake of boundaries, out of (6) So, if one levies on goods which adjoining land. Forsyth v. Wells, 41 Pa. have been previously mortgaged, if he St. 291.

levies merely upon the mortgagor's right (a) If one wrongfully leaves his goods of redemption, he does not so interfere on the land of another after being notified with the mortgagee's rights as to be liable to take them away, and the goods are de- for conversion. But, if the mortgagor has stroyed by the owner of the land in the not an interest which can be levied on by reasonable use of his own property, trover law, and the officer levies on the goods, he will not lie against him, but it will if he will be liable. Woodside v. Adams, 40 uses the goods or wilfully destroys them. N. J. L. 417. Whether a mortgagor of Ascherman v. Best Brewing Co., 45 Wis. chattels has an interest which can be at262.

tached at common law, depends on the law It is said Smith v. Colby, 67 Me. of the State. In New Jersey it is held 169, that a person acting under the direc- that he has. Woodside r. Adams, supra. tion of another as servant or bailee might In New York and Massachusetts, that he not be guiity of conversion by merely has not. Manning v. Monaghan, 28 N. Y. carrying goods froin place to place, without 585; Ring v. Neale, 114 Mass. 111.

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