mainder; (5) nor where there is no right of action immediate upon the act in question.1

Lastly, to constitute a trespass to property, the thing affected must be capable of ownership as property; otherwise no legal right can be infringed. Wild animals, untamed, are deemed property only while in the actual or constructive possession of the keeper; upon effectual and final escape, they cease to be property, and may be killed, or taken and retained by any one, at least if he is not aware of the prior ownership. And a wild, savage animal straying at large may be killed, though the owner be known to be in pursuit.2

5

A man may have property in a dog even though the animal may not have any certain pecuniary value. The same is probably true of rare animals kept for study, for exhibition, for breeding, or even as pets. No one therefore has a right to take these from the owner, or to keep them from him when taken up as strays, or needlessly to kill them. But there are circumstances when the law justifies the killing of another's animals; a man may not only protect himself or another from the attack of a beast, he may kill an animal, in some cases, which is doing mischief, as a dog which is biting or worrying his sheep or other valuable animals or fowls. Indeed, a savage dog,

6

1 See 1 Chitty, Pleading, 166. But quære whether the effect of the rule of trespass ab initio might not be had in some of these cases, as in the third and fourth?

22 Kent, Com. 348, 349.

8 Dodson v. Meek, 4 Dev. & B. 146; Wheatly v. Harris, 4 Sneed, 468.

4 See Amory v. Flyn, 10 Johns. 102, as to wild animals tamed.

5 Id.

• Dodson v. Meek and Wheatly v. Harris, supra.

7 King v. Kline, 6 Barr, 318; Woolf v. Chalker, 31 Conn. 121; Brown v. Hoburger, 52 Barb. 15.

suffered to run at large without a muzzle, and disposed to attack or snap at people, may be treated as a nuisance and killed by any one; and that, too, whether at the time the dog was doing harm or not.1

A man may, however, keep a ferocious dog as a watch over his premises, if properly secured; while the dog is in such a situation, no one may lawfully kill it, unless indeed it is then making an attack upon man or beast.2 It would doubtless be lawful to kill the dog to save the life of even a burglar.

8

A word may be added in regard to trespassing animals. The law is very plain and natural; trespassing will seldom justify killing or maiming, or even detaining upon a claim for anything more than reimbursement of necessary expenses and payment of damage done. And if detained, the animals must be taken care of and properly treated.* On the other hand, if driven away, that must be done without unnecessary violence; such violence would be a trespass. For example: The defendant, finding the plaintiff's horse straying upon his premises, sets a savage dog upon it, and the horse is seriously hurt. The defendant is liable in damages.

1 Putnam v. Payne, 13 Johns. 312; Maxwell v. Palmerston, 21 Wend. 407; Brown v. Carpenter, 26 Vt. 638.

2 See Perry v. Phipps, 10 Ired. 259.

3 See Aldrich v. Wright, 53 N. H. 398, an important case, in which

a killing was held proper.

4 Murgoo v. Cogswell, 1 E. D. Smith, 359.

5 Amick v. O'Hara, 6 Blackf. 258.

Statement of the duty. A owes to B the duty to forbear to exercise dominion (1) over B's general property in personal chattels; (2) over B's special property in the like things.

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

2. 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.

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

4. The action for converting goods to one's own use has always 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.1

5. 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.

1 The allegation was at first probably real, arising perhaps from the common action for strays. See L. C. Torts, 422.

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

7. The action of detinue is not much used in modern times. 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 the statutory action of replevin and by trover. The principles set forth in this chapter apply, generally speaking, to all three of these actions.

8. As in trespass, so in trover, detinue, and replevin, the thing alleged to have been converted must be capable of ownership as property.1

§ 2. OF POSSESSION.

The possession of a chattel personal, that is, of a movable 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 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 plaintiff.2 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 property.R

1 See ante, p. 229.

2 Lord v. Price, L. R. 9 Ex. 54. 8 Gordon v. Harper, 7 T. R. 9. See Farrant v. Thompson, 5 B. & Ald. 826; ante, p. 212.

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 the possession in contemplation of law. For example: The defendant buys and takes away a chattel belonging to the plaintiff from A, who had 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 defendant.1

A person having the 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 horse.2

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 title-deed, 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

1 Hyde v. Noble, 13 N. H. 494; Clark v. Rideout, 39 N. H. 238; Carter v. Kingman, 103 Mass. 517

2 See Outcalt v. Durling, 1 Dutch. 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.