TROVER Every wrongful assumption of property in, or exercise of authority over, the goods of another, inconsistent with his title, What it is. or in exclusion of his right, is a conversion.90 As if a bailee use or misuse the thing delivered to him,91 or deliver it to a stranger. The wrongful taking and carrying away another's goods is itself a conversion,92 and trover lies as well as trespass.93 Where the goods came lawfully into the defendant's When a depossession, and there has been no actual conversion, the plain- sary. tiff must demand them before suit,94 and the defendant refuse to deliver them up, to constitute a conversion.95 mand neces lie between ants, destroyed. Trover will not lie by one joint tenant, tenant in common Does not or parcener against his companion, for a thing still in his pos- joint tensession, because the possession of one is the possession of unless the both;96 but if he destroy or sell it,98 the other may main- property is tain trover against him. Nor does it lie against a bailee who before demand and refusal, has lost the goods by negligence, or where they have been stolen from him, but the plaintiff must have recourse to a special action on the case.99 for fixtures. What are fixtures; The subjects of this action are goods of a purely personal Does not lie character; hence it will not lie for fixtures or things fixed to the freehold. What is to be deemed a fixture depends something on the relative rights of the parties claiming it." As between an heir and executor the law is inclined to favour the inheritance and give it to the heir; as between the executor 100 as between heir and executor, 907 John. Rep. 254. 10 John. Rep. 175. 7 John. Rep. 306. 6 Mod. Rep. 212. 2 Saund. Rep. 47. f. 92 Ib. 15 John. Rep. 451. 97 3 John. Rep. 178. 98 3 John. Rep. 175. 14 John. Rep. 192. 992 Saund. Rep. 47. e. Salk. Rep. 655. Bur. Rep. 2825. Peake's 93 Cro. Eliz. 824. Cro. Jac. 50. Cas. 50. 1 Campb. Rep. 409. 1 94 6 John. Rep. 44. 95 2 Saund. 47. e. 96 2 John. Rep. 468. Salk. Rep. 290. pl. 29. 12 John. Rep. 484. 15 John. Rep. 179. John. Cas. 406. 100 3 East's Rep. 51. 13 East's Rep. 53. 54. Str. Rep. 1141. 3 Atk. Rep. 13. 16. Winch. Rep. 51. Har. Co. Lit. TROVER. of a tenant for life and the remainder man and reversioner, executor and the right of the executor is considered more favourably;2 and reversioner, tenant. landlord and as between a landlord and tenant, the law inclines strongly toward the tenant: Utensils set up in relation to trade,3 matters of ornament, as ornamental marble, chimney pieces, pierglasses, hangings, wainscoats fixed only by screws, and the like, are considered as personal property, belonging to the tenant, which he may remove during the term. Lien, a defence. 5 4 Trover cannot be maintained against one who has an existing lien upon the goods. There are two kinds of liens, general General and and particular. General liens are for a general balance of account. Particular liens are for money or labour expended on the goods, and are favoured in law." particular. Particular liens. General Liens. Particular liens exist in favour of those who are obliged to receive goods,' as common carriers, innkeepers, and millers.10 So in favour of one who preserves goods lost or abandoned at sea;11 of a master of a vessel on a passenger's trunk until his passage is paid;12 but a master has not a lien on the ship for debts incurred in repairs;13 nor on the freight for his wages or disbursements.14 Particular liens are allowed in a great variety of other cases, and. generally, in favour of tradesmen. General liens are allowed in favour of attornies and soli 55. b. n. (2.) 6 East's Rep. 604. 2 East's Rep. 88. 2 Barn. & 41 P. Will. Rep. 94. 5 1 Atk. Rep. 477. Ambl. Rep. 113. 3 Atk. Rep. 15. 4 Co. Rep. 64. 6 3 Bos. & Pul. Rep. 494. 1 Esp. Rep. 109. 4 Bur. Rep. 2221. citors, 15 bankers, 16 calico painters,17 printers, 18 dyers,19 fac- TROVER. tors,20 wharfingers,21 policy brokers, 22 and others. Liens of either kind may also exist by agreement of parties. Liens may be waived by a special agreement as to the time or mode of payment, but not merely by an agreement for the. payment of a fixed sum.23 SLANDER. for charging The action on the case for slander, lies against any person for SLANDER. falsely and maliciously speaking and publishing of another, When it lies; words which directly25 charge him with any crime for the com- with a crime, mission of which the offender is punishable by law;26 as treason, 27 murder,28 larceny,29 perjury, keeping a bawdy house, &c.31 subject the In order to sustain this action, it is essentially necessary that the words should contain an express imputation of some capital offence, or other crime or misdemeanor involving mo- which would ral turpitude, which would subject the party to an indictment party to an or infamous punishment. An imputation of the mere defect or infamous or want of virtue, moral duties or obligations, is not suffi indictment, punishment. 15 4 Term Rep. 123. 1 Ld. Raym. Rep. 738. 1 Maul. & Sel. Rep. 535. 4 Taunt. Rep. 807. 165 Term. Rep. 488. 7 Taunt. Rep. 278. 8 John. Rep. 335. 357. 15 John. Rep. 405. 173 Esp. Rep. 268. 18 3 Maul. & Selw. Rep. 167. 19 4 Esp. Rep. 53. 20 Ambler's Rep. 252. 1 Bur. Rep. 494. 6 East's Rep. 28. 21 1 Esp. Rep. 109. 22 12 John. Cas. 327 4 Campb. Rep. 60. 349. 1 East's Rep. 335. 2 Campb. Rep. 218.597. SLANDER. cient.s 33 To call a man a swindler is not actionable; nor Special damage. Charge of having a con order, 35 to call a woman a common prostitute, although she is liable by statute to be committed to the house of correction for sixty days. To call a man a thief is not actionable, unless it be intended to impute felony to him. Hence, where that or the like charge is accompanied with other words which clearly denote that the speaker did not intend to impute felony to the party charged, no action can be maintained.36 And even where there are not such accompanying words, if the hearers understood the words to relate to a transaction which shows that the words were not intended to convey an actionable charge, they are not actionable.$7 But although the words be not actionable in themselves, yet if any special damage arises from them an action will lie.38 Slander also lies for falsely and maliciously charging one tagious dis- with having any contagious disorder, the imputation of which may exclude him from society, as leprosy,40 plague, french pox, &c.41 or for slandering title, In addition to the preceding instances, it may be observed that it is actionable, falsely and maliciously to speak and publish of another, words which tend to disinherit him,42 or to deprive him of his estate, or which slander him in his 43 333 Wils. Rep. 177. 6 Term 10 John. Rep. 281. 8 East's Rep. 694. 34 2 H. Bl. Rep. 531. 35 5 John. Rep. 188. 36 Peak's Rep. 4. Cro. Jac. 114. 12 John. Rep. 239. 37 1 John. Cas. 279. 38 2 Selw. N. P. 970. 1 Taunt. Rep. 39. W. Jones' Rep. 196. Cro. Car. 140. Salk. Rep. 206. Rep. .1 44 45 office. office, profession, or trade46: Thus, in speaking of a SLANDER. justice of the peace in the execution of his office, to say that or one in his "he is a rascal, a villain and a liar," is actionable.47 But the words must be spoken of the person in relation to his office; if spoken of him as an individual, they are not actionable.48 words. For slander of this kind, an action may be brought before Actionable any injury has been sustained in consequence of the words having been spoken. From the nature of the words, the law implies the injury; hence such words are said to be actionable in themselves.49 what it is. words need tionable. This action also lies for publishing a libel, which is defined Libel, to be a censorious or ridiculing writing, picture or sign, made with a mischievous and malicious intent towards government, magistrates or individuals.105 It is not therefore necessary in order to maintain the action for libel, that the words as in In libel slander should be actionable; the consequences of written not be acslander being so much more injurious. Hence the word swindler in a libel is actionable.50 So to publish a writing Instances charging a person with being an itchy old toad 51 or one of of libel. the most infernal villains that ever disgraced human nature ;52 or charging a counsellor with offering himself as a witness in order to divulge the secrets of his client 53 or a commissioner of bankruptcy with being a misanthropist, a partizan, stripping unfortunate debtors of every cent and then depriving them of the benefit of the act;54 or charging one with insanity.5 55 Salk. Rep. 694. Ld. Raym. 812. 1 John. Cas. 330. 45 Str. Rep. 1138. 8 John. Rep. 64. 1 Binney's Rep. 178. 46 Cro. J. 578-9. 5 John. Rep. 476. 17 John. Rep. 217. *Str. Rep. 617. Ld. Ray. 1369. 41 John. Cas. 129. 49 2 Selw. N. P. 969. 105 3 John. Cas. 354. 9 John. Rep. 214. 50 1 Term Rep. 748. 51 2 Wils. Rep. 403. 52 1 Bos. & Pul. Rep. 381. 54 Ib. 55 10 John. Rep. 443. |