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proceed because of a blockade without a guarantee from the plaintiff which the latter was not obliged to give. The plaintiff demanded the return of the flour, which the defendant refused. It was held that the plaintiff might maintain replevin for the flour (3). If the original taking was lawful a demand by plaintiff is necessary to make the detention unlawful and to lay a foundation for the action. Damages for the detention may also be recovered in the action.
The property is taken from the defendant on a writ of replevin and delivered to the plaintiff at the beginning of the action upon the plaintiff's giving security that he will prosecute the action, and, if not successful, return the property with damages. It is therefore a much surer remedy to recover the property itself than detinue, and as it lies in the United States wherever detinue could be brought it has in this country practically superseded detinue.
§ 12. Bill in equity. This is sometimes allowed where there is no adequate remedy at law for the recovery of property. In the English case of Somerset v. Cookson (4) the plaintiff was the owner of an old altar-piece of silver, remarkable for a Greek inscription and dedication to Hercules. It had come into the possession of the defendant, a goldsmith, and the plaintiff brought a bill in equity to compel the delivery of the specific property undefaced. The defendant having demurred that the plaintiff had his remedy at law, the demurrer was overruled.
(3) Stoughton v. Rappalo, 3 S. & R. 659; and see Dame v. Dame, 43 N. H. 37, for a discussion of detinue and replevin.
(4) 3 P. Wms. 390.
It seems that under the English practice replevin would not lie; detinue would not insure the return of the property and, under the peculiar circumstances, damages for the value of the property were not an adequate remedy. In the United States replevin could have been brought and probably the bill in equity would not have been allowed. The question when an equitable remedy will be allowed because of the inadequacy of the legal remedy is discussed in the article on Equity in Volume VII of this work.
SECTION 2. ACTION FOR DAMAGES. We have spoken thus far of actions to recover specific personal property. When the plaintiff does not seek to recover the specific property but its value, he brings an action for damages.
§ 13. Trover. This is the common law action for the conversion of personal property. It may be brought when the defendant has wrongfully taken or retained goods of which the plaintiff had possession or the right to possession. The general rule is that the plaintiff recovers as damages the value of the property. For a discussion of conversion see the article on Torts, Chapter IV, in Volume III of this work.
§ 14. Trespass. This action lies for taking personal property from the possession of the plaintiff, or for injuring it while in his possession. This is also discussed in the article on Torts, Chapters II and III.
§ 15. Case. This form of action may be maintained by one in possession of property for a consequential injury resulting from the failure of the defendant to perform a duty imposed upon him. It is also the proper remedy for an injury to the plaintiff's reversionary interest in property in the temporary possession of another. See the article on Pleading, $ $ 35-39, in Volume XII of this work.
§ 16. All personal property actions are possessory only. As any of the actions mentioned above, both those for the recovery of the specific property and those for damages, may be maintained by a plaintiff whose only interest in the property is a right of possession, it will be seen that they try only the plaintiff's right of possession and are so-called possessory actions. Of course when the right of possession depends upon title, a determination of the right of possession determines the title, but there is no action that directly tries title to personal property.
TITLE TO PERSONAL PROPERTY BY OOCUPANOY.
§ 17. Chattels having no former owner: Newly created property. Property newly created belongs to the one bringing it into existence. It seems that the only instances of this are the exclusive rights in literary works and inventions. If published to the world the exclusive property in them was lost at common law. The statutory provisions for preserving this property right are treated in the article on Patents and Copyright elsewhere in this volume.
§ 18. Same: Wild animals. The ownership of wild animals, so far as any title to them when running at large exists, is in the state, to be exerted and exercised for the common good, as by the passage of game laws (1). Private property in them can be acquired only by reducing them to possession. No property in them attaches until possession is actually acquired. Where the plaintiff had drawn a net partially around some fish and was splashing the water to keep them from escaping through the opening and the defendant interfered so that the plaintiff lost the fish, it was held that the plaintiff had no cause of action for the loss of the fish, the court saying: “It does appear almost certain that the plaintiff would have had possession of the fish but for the act of the defendant,
(1) Geer v. Connecticut, 161 U. S. 519.
but it is quite certain that he had not possession" (2). In Butler v. Newkirk (3), the plaintiff had wounded a deer which ran six miles after being wounded, and the plaintiff gave up the chase for the night but resumed it in the morning. In the meantime the defendant had killed the deer the evening before. On the plaintiff bringing trover for the skin it was held for the defendant. The deer had not been deprived of his natural liberty so as to be in the power or under control of the plaintiff. It would seem that if the plaintiff could have shown that the deer had been fatally wounded and could have been tracked, the plaintiff would have been entitled to it, as then the deer would have been, in effect, under plaintiff's control. By a custom prevailing among whalemen and recognized as binding, the ship which first fixes a harpoon in the whale is entitled to it though it is afterwards killed by another ship's crew, if the first ship claims the whale before "cutting in” (4).
As title to property created merely by the act of reducing a thing into possession necessarily implies a reduction into possession by a lawful act, where a trespasser kills animals on another's land without the latter's permission the dead animals are the property of the owner of the land (5).
$ 19. Lost or abandoned chattels: Wreck. Wreck means shipwrecked property that has been cast upon the shore, and it formerly belonged to the king if the owner
(2) Young v. Hichens, 6 Q. B. 606.