CHAPTER XI

CONVERSION

Statement of the duty. A owes to B the duty not to exercise dominion (1) over B's general property in personal chattels.; (2) over B's special property in the like things.

By 'general property' is commonly meant the ownership of property, subject, it may be, to a special property for a time in another.

By 'special property' is meant a right of possession coupled with possession; the right being general, as in the case of a lien creditor, or limited as in the case of a finder.

By 'bare possession' merely is commonly meant a mere custody (detention') or a possession unlawfully obtained.

Like trespass to property the remedy for this wrong is 'possessory,' in the sense that possession is deemed necessary to the action; but that condition being fulfilled, recovery extends to the value of the property.

The action for converting goods to one's own use has been called 'trover,' a term meaning 'to find,' which was used in the old precedents of declaration; the plaintiff, by a fiction, alleging that he had lost and the defendant had found and converted to his own use the chattel in question. This fiction was invented in cases of bailment or the like, to avoid the objection that the defendant had received the goods from the hand of the plaintiff1. The judges received the allegation accordingly, and

1 According to the old theory the wrong, like that of trespass, must have been done to the plaintiff's possession (compare ante, p. 205), and hence it was fatal to any action of the kind that the plaintiff had delivered possession to the defendant. If, in respect of possession, the conversion had originally been deemed enough, there would have been no need of the invention of the fiction of loss and finding.

Such common cases as actions for the taking of straying cattle may have suggested the idea of the fiction. See Bigelow's L. C. Torts, 422.

did not require proof of it; proof of the conversion therefore was enough.

The action of 'trover' is an action to recover (not specific articles, but) damages for the conversion of chattels personal, to the value of the interest converted.

By an act of dominion' is meant an act of, or tantamount to, ownership.

The old action of detinue has not been much used in modern times because of its inconvenience; it requires exact description of the property detained, a thing sometimes difficult to give. Its object is to recover chattels in specie, or damages for their non-return if they cannot be had, and damages for the wrongful detention. It has been superseded largely by trover, which never required such exact description. Detinue too could be defeated, until modern times, by compurgation, while trover could not. Forms of action have indeed been abolished, but the substance of what was required in trover remains in what is required to maintain a suit for conversion.

As in trespass, so in trover, detinue, and replevin, the thing alleged to have been converted must be capable of ownership as property1.

§ 1. WHAT MUST BE PROVED

The plaintiff is entitled to recover by proving that the defendant took and converted to his own use goods of which the plaintiff was in possession or entitled to take possession at the time of the conversion or because of that act.

Possession

and conversion.

§ 2. POSSESSION

The possession of a chattel personal, that is, of a moveable article, or a right to take possession thereof, is necessary to support an action for conversion, just as it is to support an action for trespass. The plaintiff fails

Possession

of chattels.

1 See ante, p. 226.

in trover if it appear that he has never acquired a right of possession, or if he has, that he has parted with it, and has not before suit become reinvested with the same. For example: The plaintiff is the purchaser of goods, which however remain in the seller's possession subject to a lien for the purchase price. The defendant, without authority, removes the goods from the seller's possession, doing no permanent injury to them. This is no breach of duty to the plaintiff1. Again: The defendant, a sheriff, wrongfully levies upon goods of the plaintiff in the hands of a lessee of the property, and carries the goods away. The plaintiff cannot treat the act as a conversion (though the tenant could), since the plaintiff was not entitled to the possession of the property2.

On the other hand, the right to the possession of the chattels is sufficient to enable the general owner to sue for a conversion thereof, though he may not have the actual possession at the time of the wrongful act; because, as was stated in the preceding chapter, the right to take possession of goods draws possession in law. For example: The defendant buys and takes away a chattel belonging to the plaintiff from A, who has no right to sell it. The plaintiff, being the owner, is deemed to have been in possession of the chattel at the time of the conversion by the defendants.

Special property.

A person having 'special property' in goods, with general right of possession, can maintain an action for conversion against all persons who may wrongfully exercise dominion over them though the act be done by command of the owner of the goods. For example: The defendant takes a horse out of the possession of the plaintiff, the plaintiff having a lien upon the animal. The defendant acts by direction of the owner, but without other authority. He is liable for conversion of the horse1.

1 Lord v. Price, L. R. 9 Ex. 54.

2 Gordon v. Harper, 7 T. R. 9. See Farrant v. Thompson, 5 B. & Ald. 826; ante, p. 211.

3 Hyde v. Noble, 13 New Hampshire, 494; Clark v. Rideout, 39 New Hampshire, 238; Carter v. Kingman, 103 Mass. 517.

4 See Outcalt v. Durling, 1 Dutcher (New Jersey), 443. The form of action in this case was trespass, but it might as well have been trover. The injured party could sue in either form in such cases.

It follows that a person having a special property in goods, together with general right of possession of them, may maintain an action against the owner himself for any unpermitted disturbance or refusal of his possession; since, if the owner cannot give an authority to another to take the goods, he cannot take them himself. For example: The defendant, owner of a titledeed, in the possession of the plaintiff under a temporary right to hold it, takes it by permission of the plaintiff for a particular purpose, and then, during the continuance of the plaintiff's right to hold it, refuses to redeliver it. The defendant has violated his duty to the plaintiff, and is liable for conversion1.

Possession without right.

One who has possession of chattels, though without a right to hold them against the owner, is also protected against all persons having neither a right of property nor of possession. The mere fact that the possessor of goods has no right to hold them against persons having a general or higher special property in the goods, gives no privilege to a stranger to interfere with the party's possession. So to interfere would be a breach of duty to the possessor which would render the person interfering liable for the value of the goods. For example: The defendant, a stranger, refuses to return to the plaintiff a jewel, which the latter has found and shown to the defendant. The defendant's act is a breach of duty to the plaintiff, and he is liable for the value of the jewel2.

Jus tertii.

It would be different however if the defendant acted under express authority of the owner, or of one entitled to the possession of the property. But it is laid down that the defendant could not set up the rights of a third person (called the 'jus tertii') without authority from the latter3. That is, the defendant can deny the plaintiff's right only by showing a better right in himself.

1 Roberts v. Wyatt, 2 Taunt. 268.

2 Armory v. Delamirie, 1 Strange, 505.

3 Rogers v. Arnold, 12 Wendell (New York), 30 (suit to recover the chattels specifically); Jefferies v. Great Western Ry. Co., 5 El. & B. 802; Cheesman v. Exall, 6 Ex. 341. Does this mean that possession in itself, however obtained, will be protected,--that it cannot be shown e.g. that the plaintiff stole the property? See ante, p. 209, note.

4 Hubbard v. Lyman, 8 Allen (Mass.), 520; Landon v. Emmons, 97 Mass. 37.

The finding of a chattel does not however in all cases give a right to hold the article against all persons having no right of property in it; though the finding and taking Finding. possession were not unlawful as against the loser. The chattel may be found upon the premises of another, in such a situation as to indicate that it was voluntarily put in possession of the owner of the premises. When this is the case, the possession of the article is deemed to be in the occupant of the premises, and not in the finder. The former can therefore maintain an action for conversion against the latter should he refuse to surrender to him the chattel. For example: The defendant, a barber, receives from the plaintiff, a customer in his shop, a pocket-book containing money, which the plaintiff has discovered lying upon a table in the defendant's shop. The plaintiff, in handing the pocket-book to the defendant, tells him to keep it until he can discover the owner, and then return it to the loser. No one having called for the article, the plaintiff claims it, and the defendant refuses to give it to him. This is not a breach of duty to the plaintiff, since the fact that the pocket-book was left upon the defendant's table indicates that the owner put it there by intention, and so put it into the defendant's keeping or possession1.

If however the chattel be found in a position which indicates that it could not have been purposely put there, but must have been unintentionally parted with, and so truly lost the moment it escaped the owner, it does not fall into the keeping or possession of the occupant of the premises unless he (or his servant) first discover it there. If another first find it, the possession, as between himself and the occupant, is in him, the finder. For example: The defendant, a shopkeeper, receives from the plaintiff a parcel, containing bank-notes, which the latter has picked up from the floor of the defendant's shop; the plaintiff, on handing the parcel to the defendant, telling him to keep the same till the owner claims it. The defendant advertises the parcel, but no one claims it, and three years having elapsed, the plaintiff requests the defendant to return to him the notes, at the

1 McAvoy v. Medina, 11 Allen (Mass.), 548.

2 South Staffordshire Water Co. v. Sharman, 1896, 2 Q. B. 44; Bridges v. Hawkesworth, 21 L. J. Q. B. 75.