If the taking was felonious,' the despoiled owner might bring an appeal of larceny, and, by complying with certain conditions, obtain restitution of the stolen chattel. But such was the rigor and hazard of these conditions, that from the middle of the thirteenth century the appeal was largely superseded by the new action of trespass. If the taking was not criminal, trespass was for generations the only remedy." Trespass, however, was a purely personal action; it sounded only in damages. The wrongful taking of chattels was, therefore, a more effectual disseisin than the ouster from land. The dispossessed owner of land, as we have seen, could always recover possession by an action. Though deprived of the res, he still had a right in rem. The disseisor acquired only a defeasible estate. One whose chattel had been taken from him, on the other hand, having no means of recovering it by action, not only lost the res, but had no right in rem. The disseisor gained by his tort both the possession and the right of possession; in a word, the absolute property in the chattel taken. To-day, as every one knows, neither a trespasser, nor one taking or buying from him, nor the vendee of a bailee, either with or without delivery by the latter, acquires the absolute property in the chattel taken or bailed. The disseisee of goods, as well as the disseisee of land, has a right in rem. The process by which the right in personam has been transformed into a real right may be traced in the expansion of the writs of replevin and detinue, and is sufficiently curious to warrant a slight digression. Re Replevin was originally confined to cases of wrongful distress. . . plevin was never allowed England against a vendee or bailee of a trespasser, nor against a second trespasser. It was only by the later extension of the action vin restricted. The disseisee's right of entry into land was tolled after five days. If he entered afterwards, the disseisor could recover the land from him by assize of novel disseisin. Maitland, 4 L. Q. Rev. 29, 35. So the writ of ravishment of ward would lie against one entitled to the ward if he took the infant by force from the wrongful possessor. Y. B. 21 & 22 Ed. I. 554. The lord must resort to his action to recover his serf, if not captured infra tertium vel quartum diem. 4 L. Q. Rev. 31. A nuisance could be abated by act of the party injured, only if he acted immediately. Bract. f. 233; 1 Nich. Br. 403. Originally any taking without right, like killing by accident, was felonious. In Bracton's time, if not earlier, the animus furandi was essential to a felony. Bract. f. 136 b. 2 See cases cited supra, p. 543, n. 2. 3 A case of the year 1199 (2 Rot. Cur. Reg. 34) seems to be the earliest reported instance of an action of trespass in the royal courts. Only a few cases are recorded during the next fifty years. But about 1250 the action came suddenly into great popularity. In the Abbreviatio Placitorum, twenty-five cases are given of the single year 1252-1253. We may infer that the writ, which had before been granted as a special favor, became at that time a writ of course. In Britton (f. 49), pleaders are advised to sue in trespass rather than by appeal, in order to avoid "la perilouse aventure de batayles." Trespass in the popular courts of the hundred and county was doubtless of far greater antiquity than the same action in the Curia Regis. Several cases of the reign of Henry I. are collected in Bigelow, Placita Anglo-Normannica, 89, 98, 102, 127. In early English law, as in primitive law in general, the principle of parsimony did not permit concurrent remedies. The lines were drawn between the different actions with great sharpness. The right to sue a trespasser in replevin and detinue was a later development, as will be explained further on. Mennie v. Blake, 6 E. & B. 847. of detinue that a disseisee finally acquired a perfect right in rem. Detinue, although its object was the recovery of a specific chattel, was originally an action ex contractu. . . . In 1600 the comparatively modern action of trover, which had already nearly supplanted detinue sur trover, was allowed against a trespasser; although even then two judges dissented, because by the taking "the property and possession is divested out of the plaintiff." As the averments of losing and finding were now fictions, trover was maintainable by the disseisee against any possessor. The disseisee's right to maintain replevin and detinue (or trover) being thus established, .. if this historical sketch has been accurately drawn, the disseisin of land finds its almost perfect counterpart in the conversion chattels.2 292. Lord MANSFIELD, C. J., in Cooper v. Chitty (1756. 1 Burr. 20, at 31). The action of trover, in form, is a fiction; in substance, a remedy to recover the value of personal chattels wrongfully converted by another to his own use. The form supposes the defendant may have come lawfully by the possession of the goods. This action lies, and has been brought in many cases where, in truth, the defendant has got the possession lawfully. . . . This is an action of tort: and the whole tort consists in the wrongful conversion. Two things are necessary to be proved, to entitle the plaintiff to recover in this kind of action: 1st, Property in the plaintiff; and 2dly, a wrongful conversion by the defendant. 293. REGISTRUM BREVIUM (1595). Breve de catallis asportatis (fol. 95 a). Quare vi & armis quandam nauem ipsius A, precii decem librarum, apud H. inuentam cepit & abduxit, & bona & catalla sua ad valentiam viginti librarum in eadem naui inuenta cepit & asportauit &c. 294. W. S. An Exact Collection of Choice Declarations, etc., translated into English for the benefit and help of young Clerkes. (1653. Part 2, p. 107.) Declaration in trespass for taking and leading away a horse: I. W. complaineth of R. W. in the custody of the Marshall, etc. of that, that he in the Feast of St. Margaret the Virgin, in the 21. year of the Reign of King Henry the 8. with force and Arms, that is to say with Staves, etc. one Gelding of Colour black Gray of him the said I. of the price of 5. marks, at W. in the County aforesaid, found, took, and lead away, And other Wrongs, etc. to the Damage, etc. 10 marks, And thereupon he bringeth his Suit, etc. 295. ANON. The Attorney's Practice in the Court of Common Pleas (1746; 2d ed., vol. I, p. 121). Declaration in trover: Surrey, to wit. J. T. late of etc., Brewer, was attached to answer W. B. of a plea of trespass on the case; 1 Bishop v. Montague, Cro. El. 824, Cro. Jac. 50. 2 [ESSAYS AND CHAPTERS ON THE HISTORY OF ACTIONS FOR DISSEISIN OF PERSONALTY: James Barr Ames, "The History of Trover." (Essays in Anglo-American Legal History, III, 417.) Frederic William Maitland, "Equity and the Forms of Action at Common Law." (Lecture V, pp. 347 ff.) Sir Frederick Pollock and Frederic William Maitland, "History of English Law." (vol. III, c. VIII, § 3.) William S. Holdsworth, "History of English Law" (vol. II, pp 307 ff.; vol. III, passim).] and whereupon the said W. B. by L. R. his attorney complains, that whereas the said W. B. on the tenth day of December in the fourteenth year of his present majesty's reign, at Kingston in the county of surry, was possessed of the following goods and chattels, to wit, (here insert the goods) to the value of one hundred pounds, as of his own proper goods and chattels; and being so thereof possessed the said W. B. casually lost the said goods and chattels out of his hands and possession; which said goods and chattels afterwards, to wit, on the said tenth day of December in the fourteenth year aforesaid, at Kingston aforesaid in the county aforesaid, came by finding to the hands and possession of the said J. T. Nevertheless the said J. T. knowing the said goods and chattels to be the goods and chattels of the said W. B. and to him of right to belong and appertain, yet contriving and fraudulently intending craftily and subtilly to deceive and defraud the said W. B. of the said goods and chattels, has not delivered the said goods and chattels to the said W. B. (although often required) but afterwards, to wit, on the tenth day of January in the fourteenth year aforesaid, at Kingston aforesaid in the county aforesaid, converted the said goods and chattels to his own proper use, to the damage of the said W. B. of 2001. And thereupon he brings suit, etc. (1) What Act amounts to a Disseisin (or Conversion) 296. SIMMONS v. LILLYSTONE 8 Exch. 431 THE second count was in trover for the conversion of goods and chattels, to wit, five hundred pieces of timber. Pleas (inter alia) to the whole declaration, not guilty. The plaintiff joined issue on the first plea. At the trial, before Pollock, C. B., at the London sittings after last Michaelmas term, it appeared that the plaintiff carried on the business of a mast, oar, and block maker at Milton next Gravesend. The evidence in support of the second count was, that certain pieces of timber or spars used for making bowsprits, and belonging to the plaintiff, being on the defendant's land, he caused them to be removed; and upon the timber being again placed there, and having become imbedded in the soil, the defendant directed his workmen to dig a saw-pit in his land, and in so doing they cut through the timber, leaving the pieces there, and part of them was afterwards carried away by the tide of the river, which at high water flowed over the land, the other part remaining imbedded in the soil. It was objected, on the part of the defendant, that there was no evidence of a conversion. His lordship was of opinion that there was prima facie evidence of a conversion. The jury found a verdict for the plaintiff; damages £60. Bramwell, in last Michaelmas term, having obtained a rule nisi, Shee, Serjt., and Rose showed cause in Hilary term (January 27). There was evidence of a conversion. In order to constitute a conversion, it is not necessary that there should be an acquisition of property by the defendant; it is sufficient if there be a deprivation of property to the plaintiff. Keyworth v. Hill, 3 B. & Ad. 685. [PARKE, B. Here the defendant never intended to take to himself any property in the timber.] If a person purposely left the gate of a field open, so that a horse escaped, that would amount to a conversion. [PARKE, B. The form of a count in trover, prescribed by the Common-law Procedure Act, 15 & 16 Vict. c. 76, Sched. (B.), is, "that the defendant converted to his own use, or wrongfully deprived the plaintiff of the use and possession of, the plaintiff's goods." Suppose a person threw a stone into a room through an open window, and broke a looking-glass, would that be a conversion of it?] It is submitted that any wilful damage to a chattel, whereby the owner is deprived of the use of it in its original state, is a conversion. [PLATT, B. Taking wine from a cask and filling it up with water is a conversion of the whole liquor. Richardson v. Atkinson, 1 Stra. 576.]. Willes, in support of the rule. . PARKE, B. The question which relates to the count in trover is, whether there was any evidence of a conversion. Now the evidence was that the pieces of timber were cut in two by the defendant; that they were left imbedded in the soil,- not applied to the defendant's own use, and that part of them was carried away by the tide. Without adverting to the plea of justification, we are all of opinion that there was no sufficient evidence of a conversion to entitle the plaintiff to a verdict on the plea of not guilty. In order to constitute a conversion there must be an intention of the defendant to take to himself the property in the goods, or to deprive the plaintiff of it. If the entire article is destroyed, as, for instance, by burning it, that would be a taking of the property from the plaintiff and depriving him of it, although the defendant might not be considered as appropriating it to his own use. In this case nothing is done but cutting the timber, and, by accident, it is washed away by the river,- not purposely thrown by the defendant to be washed away; consequently, we think that does not amount to a conversion. . Rule accordingly. 297. McPHETERS v. PAGE SUPREME JUDICIAL COURT OF MAINE. 1891 83 Me. 234, 22 Atl. 101 ON Report. The case is stated in the opinion. Jasper Hutchings, for plaintiffs. Barker, Vose and Barker, for defendant. Defendant was an innocent bailee. One who receives goods in his possession and control, knowing that they were not lawfully in the possession of the person who brought them to him, and afterwards allows them to be taken away by the same person, is not thereby guilty of a conversion. FOSTER, J. Trover to recover the value of one carcass and two saddle of deer. It is admitted that the deer were lawfully killed by the plaintiffs and that they owned the carcass and saddles for which this suit is brought. The only question involved whether there has been conversion of the property by the defendant. The carcasses and saddles were, during open season, put on board cars to be transported to Boston for sale. Upon their arrival at Bangor, they were seized by a constable and two police officers for some supposed violation of law on the part of the plaintiffs, in attempting to transport them out of the State. They were taken and carried by these officers to the defendant's meat market in the city, and there left with him. He knew the officers' possession came by seizure. The officers had no precept and procured none, either against the property or the plaintiffs. They were not justified in seizing them, or in afterwards doing what they did with them. Nor have we any doubt that the acts of the defendant with reference to the property in question amounted to a conversion. The evidence is uncontradicted that he skinned the carcass and saddles, cut them into steaks and roasts, let one of the officers "have paper to do the pieces up to distribute them round to his friends," and sent a few of the order out with his own team. This he admits. He used none of the meat himself; neither was any of the meat sold. The defendant sets up no justification by his pleading. It would not avail him were he to do so with the facts before us. 1. It is established as elementary law by well-settled principles, and a long line of decisions, that any distinct act of dominion, or inconsistent with it, amounts to a conversion. It is not necessary to a con version that it be shown that the wrong-doer has applied it to his own If he has exercised a dominion over it in exclusion, or in defiance of, or inconsistent with, the owner's right, that in law is a conversion, whether it be for his own or another person's use. Cooley on Torts, 448; Webber v. Davis, 44 Maine, 147, 152; Miller v. Baker, 1 Met. 27; Fernald v. Chase, 37 Maine, 289. use. "He who interferes with my goods, and without any delivery by me, and without my consent, undertakes to dispose of them, as having the property, general or special, does it at his peril to answer me the value in trespass or trover." Gibbs v. Chase, 10 Mass. 125, 128. In this case the defendant was more than a mere naked bailee. He exercised a dominion over the property destructive of it, and inconsistent with the plaintiff's ownership. 2. The fact that he was the servant of others who were themselves wrong-doers, and acted under their authority, cannot avail him though he may have been ignorant of their want of title to the property in question. Kimball v. Billings, supra; Coles v. Clark, 3 Cush. 399, |