Possession of Plaintiff. This may be either actual or constructive. "It is established law, that he, who has the general property in a personal chattel, may maintain trespass for the taking of it, by a stranger, although he never had the possession in fact; for the general property in a personal chattel, draws to it possession in law.' 9958 It is also established, that one, who illegally interferes with the possession of a chattel, is liable in trespass to the one whose actual possession is invaded" although such possession is illegal. A successful defense to the action of trespass must rest upon the rightfulness of the defendant's conduct, not upon defects in the plaintiff's title, or in his right to possession. One may be a trespasser, even against a thief.61 Excusable Trespasses. 60 These have been dealt with, at considerable length, in a previous chapter, and their consideration need not be renewed here. It will be recalled that a very extensive head of excuse, in cases of trespass, is that of license. When that license is abused it becomes (1867). Defendant untied plaintiff's horse, led him to another post and hitched him. Here, he became entangled in his halter, was thrown to the ground and killed. Judgment upon verdict for plaintiff for the value of the horse affirmed. 58 Bulkley v. Dolbeare, 7 Conn. 232, 235 (1828); Haythorn v. Rushforth 16 N. J. L. 160, 38 Am. Dec. 540 (1842); Putnam v. Wyley, 8 John. (N. Y.) 432, 5 Am. Dec. 346 (1811); Edwards v. Edwards, 11 Vt. 587, 34 Am. Dec. 711 (1839). Gutter v. Pac. Steam Whaling Co., 96 Fed. 617 (1899). Seamen on board an abandoned whaling bark successfully maintained trespass against the defendant, whose servants took the stores from the bark, although the seamen had bare possession and no ownership. "The peace and good order of society," it is declared, "require that persons thus in the possession of property, even without any title, should be enabled to protect such possession, by appropriate remedies against mere naked wrongdoers," citing Jeffries v. G. W. Ry., 5 E. & B. 802, 25 L. J. Q. B. 1071 (1856); Wheeler v. Lawson, 103 N. Y. 40, 8 N. E. 360, (1886). 60 Brown V. Ware, 25 Me. 411 (1845); Commonwealth v. Rourke, 10 Cush. (64 Mass.) 397 (1852); Ewings v. Walker, 9 Gray (75 Mass.) 95 (1857); Odiorne v. Colley, 2 N. H. 66, 9 Am. Dec. 39, (1819); Potter v. Washbun, 13 Vt. 558, 37 Am. Dec. 615 (1840). 61 Commonwealth V. Coffee, 9 Gray, (75 Mass.) 139 (1857); Ward v. People, 3 Hill, (N. Y.) 395 (1842); Fletcher v. Cole, 26 Vt. 170, 177, (1853). important to inquire whether it was accorded to the defendant by the law, or by consent of the plaintiff. Trespass Ab Initio. When the license is accorded by law, it is said that the law should make void everything done by the abuse of its authority, and leave the abuser as though he were a trespasser from the beginning. But where a man, who is under no necessity to give a license to another, does give it, and the licensee abuses the authority, there is no reason why the law should interpose to make void everything done by such abuse, because it was the man's folly to trust another with an authority, who was not fit to be trusted.63 65 64 66 Accordingly, where one distrains property, or takes up an estray, and converts or abuses it, he is liable as a trespasser ab initio. So is an officer who seizes property or arrests a person under legal process, and then abuses the authority given him by the law as by unreasonable delay in removing the property, or by charging illegal fees. So is one who secures entrance upon plaintiff's land by authority of the law, and then abuses the license.68 On the other hand, if the license proceeds from the plaintiff, an abuse of it will not make the original entry upon the land a trespass, although the abuser's act may be in itself a trespass. And it is to be borne in mind, that the abuse of the authority of law, which makes a man a trespasser ab initio, is the abuse of some special and particular authority, and has no reference to the general rule which makes acts lawful which the law does not forbid.70 63 Allen v. Crofoot, 5 Wend. (N. Y.) 506 (1830). 64 Duncombe V. Reeve, Croke Eliz., 783 (1601). 65 Bagshaw v. Goward, Croke Jac., 147, 1 Yelv. 96, Noy, 119 (1606); Adams v. Adams, 13 Pick., (30 Mass.) 384 (1832). Williams v. Powell, 101 Mass. 467 (1869). 67 Robbins v. Swift, 86 Me. 197, 29 At. 981 (1894), and cases cited. 68 Gardner V. Rowland, 12 Ire. 69 (24 N. C.) 247 (1842); Adams v. Rivers, 6 Barb. (N. Y.) 390 (1851); Harrison v. Duke of Rutland (1893) 1 Q. B. 142, 62 L. J. Q. B. 117, 47 A. L. J. 329. 89 Hubbell V. Wheeler, 2 Aik. (Vt.) 359 (1827); Jewell v. Mahood 44 N. H. 47 (1863); Allen v. Crofoot, 5 Wend. (N. Y.) 506 (1830); The Six Carpenters's Case, 8 Coke 146, a. (1610). 70 Esty v. Wilmot, 15 Gray (81 Mass.) 168 (1860). CHAPTER XII. TROVER AND CONVERSION. The Fiction of Finding. Originally, the action of trover was "an action of trespass on the case for the recovery of damages against a person who had found goods, and refused to deliver them to the owner upon demand, but had converted them to his own use." The allegation of finding was often fictitious, but the defendant was not allowed to deny the fiction; and in modern times the allegation is treated as unnecessary. The substance of the action, to-day, is for the wrongful interference with the plaintiff's dominion over the property in question.3 In many cases, the plaintiff has his option to sue for trespass or for conversion. This is true, whenever the defendant's conduct is a wrongful interference with the plaintiff's possession and with his right as owner.3 1 Smith V. Grove, 10 Mo. 51 (1848); Cooper v. Chitty, 1 Burr. 20 (1756). Royce v. Oakes, 20 R. I. 252, 38 At. 371, 39 L. R. A. 845 (1897); Burroughs v. Bayne, 5 H. & N. 296, 29 L. J. Ex. 188 (1860). 339, Cases in last two notes; Davis v. Hunt, 114 Al. 146, 21 So. 468 (1896); Payne V. Elliott, 54 Cal. (1880); Platt v. Tuttle, 23 Conn. 233 (1854); Harris v. Saunders, 2 Strob. Eq. (S. C.) 370 (1835); approving of the following definition: "A conversion seems to consist in any tortious act, by which the defendant deprives the plaintiff of his goods, either wholly or for a time." In Montgomery etc., Co. v. Chapman & Co., 126 Fed. C8 (1903) the court said; "The distinction between trespass and conversion is this: that trespass is an unlawful taking-as, for example, the unlawful removal of the propertywhile conversion is an unlawful taking or keeping in the exercise, legally considered, of the right of ownership. A mere seizure or unlawful handling may amount to a trespass, while conversion is usually characterized by a usurpation of ownership." Bassett v. Maynard, 1 Rolle Abd. 105 M. pl. 5 (1601); Bishop v. Montague, Cro. Eliz., 824 (1601), S. C. Cro. Jac. 50 (1604); Leverson v. Kirk. 1 Rolle Abd. 105, M. pl. 10 (1610); Dexter v. Cole, 6 Wis. 320 (1858). 8 Subject Matter of Trover. While the fiction of finding remained an essential element of the cause of action, trover could be brought only for tangible chattels. At present, however, it lies for any species of personal property -for bank bills; or other negotiable, instruments; for certificates of stock; for copies of book accounts; 10 for timber or crops converted after severance from the realty; 11 for domestic animals,12 as well as for animals of a wild nature which have been tamed,13 or reduced to the legal ownership and control of the plaintiff; 14 and even for property which the plaintiff had no legal right to possess. It does not lie, however, to protect the ownership of counterfeit money, or any other chattel, which the law treats as a nuisance, and outside the pale of legal toleration. 16 15 It is not Against Whom the Tort May be Committed. necessary that the plaintiff be the true owner of the goods in question. If he has a special property therein, as bailee," or as receiver under an order of the court, 18 or, if he is in actual possession at the time of their conversion by the defendant,19 although that possession may be in the nature of a disseisin of the true owner,20 he can suc State v. Omaha, Nat. Bank, 59 Neb. 483, 81 N. W. 489 (1899).319 Moody v. Keener, 7 Porter (Al.) 218 (1838); Royce v. Oakes, 20 R. I. 252, 38 At. 371, 39 L. R. A. 845 (1897). Burr, 5 $ Comparet v. Blackf. (Ind.) 419 (1840); Griswold V. Judd, 1 Root (Conn.) 221 (1790). " Payne v. Elliot, 54 Cal. 339 (1880). 10 Fullam v. Cummings, 16 Vt. 697 (1844). 11 Sampson v. Hammond, 4 Cal. 184 (1854); Nelson v. Burt, 15 Mass. 204 (1818). In Platner v. Johnson, 26 Miss. 142 (1853), the court held that trover would not lie, because the severance and asportation were one transaction. 12 Drew v. Spaulding, 45 N. H. 472 (1864). 13 Amory v. Flyn, 10 Johns, (N. Y.) 102, 6 Am. Dec. 316 (1813). 14 Taber v. Jenny, 1 Sprague (U. S. Adm. Dec.) 315 (1856). 15 Averill v. Chadwick, 153 Mass. 171, 26 N. E. 441 (1891). 16 "Spalding v. Preston, 21 Vt. 9, 14, 50 Am. Dec. 68 (1848). 17 Euxton v. Hughes, 2 Bing. 173 (1824); Smith v. James, 7 Cow. (N. Y.) 328 (1827); National Surety Co. v. United States, 129 Fed. 70 (1904); The Beaconsfield, 158 U. S. 30, 15 Sup. Ct. 869, 39 L. Ed. 993 (1894). 18 Kehr v. Hall, 117 Ind. 405, 20 N. E. 279 (1888). 19 Wheeler v. Lawson, 103 N. Y. 40, 8 N. E. 360 (1886); Cook v. Thornton, 109 Al. 523, 20 So. 14 (1895). 20 Disseisin of Chattels, by Professor Ames, 3 Harv. L. R. 23, 313, 337 (1889). cessfully maintain the action. In such cases, the defendant does not make out a defense, as a rule, by showing that the true ownership is in a third person. He must go further and connect himself with such title.21 When the plaintiff is not in possession at the time of the defendant's conversion, he must show property in himself and his right. to immediate possession. In such cases, it is proper to say that he must recover upon the strength of his legal right and not upon the defects in the defendant's title.22 The tort of conversion (1) A wrongful taking How Conversion is Committed. ordinarily assumes one of four forms: 23 under a claim of ownership, or a claim inconsistent with the plaintiff's ownership. (2) An exclusion of the plaintiff from his rightful exercise of dominion, although the defendant's taking was lawful. (3) A wrongful use of the property. (4) Its wrongful detention. Let us consider these in detail:: If Wrongful Asportation in the Exercise of Dominion. the asportation, or wrongful taking, is not of a character inconsistent with the plaintiff's ownership, it may be trespass, but it does not amount to conversion. Accordingly, a person who removes the goods of another, for his own convenience, and does not restore them to their original position, may be liable in trespass, but not in conversion, for he makes. no claim to their ownership or possession; he does no act which amounts to an exercise of ownership or right of property inconsistent with the real owner's right of possession. If, however, he 21 Stowell v. Otis, 71 N. Y. 36 (1866); Cook v. Patterson, 35 Al. 102 (1859); Jeffries v. Great Western Ry., 5 E. & B. 802, 25 L. J. Q. B. 107 (1856). 22 Union Stockyard Co. v. Mallory, 157 Ill. 554, 41 N. E. 888, 48 Am. St. R. 341 (1895). 23 Kennet v. Robinson, 2 J. J. Marsh. (25 Ky.) 84 (1829); Fernald v. Chase, 37 Me. 289 (1853); State v. Haley, 2 Hask. (U. S. Cir. Ct.) 354, Fed. Cases No. 8,977 (1879); Glover v. Riddick, 11 Ired. (33 N. 24 C.) 582 (1850); Harris v. Saunders, |