No. 3552.

Book 4, tit. 9, chap. 2, sec. 2, § 6, art. 1.

No. 3552.

evidence, that the title of the goods was in himself, either absolutely as general owner, or joint owner with the plaintiff, or specially, as bailee; or that he had a right to retain on account of his lien ;(a) or that he took the goods for a just cause, as for rent in arrear; (b) or he may disprove the plaintiff's title by showing title in a stranger,(c) but he cannot set up the interest of such third person without showing a title of some kind in himself. (d) He may prove facts, showing a license, or a subsequent ratification, or any other facts which support his special plea.

§ 6. Of the verdict and judgment in trover.

Art. 1.-Of the verdict.

3552. The verdict is rendered for the damages which the plaintiff has sustained in consequence of the conversion of his goods by the defendant. As a general rule, damages are allowed for the value of the property at the time of the conversion, with interest. (e) But a difficulty arises to ascertain what is the property which has been converted; what was actually taken from the plaintiff, or what article improved by the work and industry of the defendant. It is a general rule, that a wrong doer can never benefit by his own wrong, and as it would be extremely difficult to ascertain the value of the original property, without his labor, the whole shall be considered as the property of the plaintiff, and he will be entitled to damages accordingly; as, where the defendant took logs of the plaintiff, and converted them into boards,

(a) Bull, N. P. 45; Skinner v. Upshaw, 2 Ld. Raym. 752. (b) Wallace v. King, 1 H. Bl. 13; Kline v. Husted, 3 Caines, 275. (c) Schermerhorn v. Van Volkenburgh, 11 John. 529; Rotan v. Fletcher, 15 John. 207.

(d) Duncan v. Spear, 11 Wend. 54.

(e) Matthews v. Menedger, 2 McLean, 145; Ewart v. Kerr, 2 McMullan, 141; Buford v. Fannen, I Bay, 273; McConnell v. Linton, 4 Watts, 357; Harger v. McMains, 4 Watts, 418.

No. 3553.

Book 4, tit. 9, chap. 2, sec. 2, § 6, art. 2.

No. 3553.

the plaintiff may recover the value of the boards, and the verdict should be for that amount. (a) Where other losses, besides the value of the property, have been sustained, the plaintiff is entitled to recover damages for such injury, and the verdict should, therefore, include an amount sufficient to indemnify him; as, where the defendant converted a slave, the verdict should be for the value of the slave and for his labor.(b) The defendant cannot, however, recover damages for a greater injury than he has sustained; thus, where the plaintiff had a life estate in a slave, he can recover only the value of the life interest. (c)

When the subject is a written security, the verdict should be for the amount of the principal and the interest due upon it.(d)

The defendant may prove, in mitigation of damages, that the plaintiff has himself recovered the property, or it has been restored to him and accepted; the verdict should be for the actual injury occasioned by the conversion, including the expenses of recovery.(e) But if the taking was wrongful, and an action of trover for the recovery of the property be commenced, the defendant cannot, in mitigation of damages, tender the property so taken, to the plaintiff, and compel him to take it; (f) nor will such a tender avail the defendant, where the property has been essentially injured, after an action brought.(g)

Art. 2.-Of the judgment.

3553.-1. The judgment in trover, when the ver

(a) Greenfield Bank v. Leavitt, 17 Pick. 3; Baker v. Wheeler, 8 Wend. 505. See Kid v. Mitchell, 1 N. & M. 334.

(b) Banks v. Hatton, 1 N. & McC. 221. See Jamson v. Hendricks, 2 Black f. 94.

(c) Strong v. Strong, 6 Ala. 345.

(d) Roming v. Roming, 2 Rawle, 241; Mercer v. Jones, 3 Campb. 477. (e) 17 Pick. 3; Yale v. Saunders, 16 Verm. 243; Hepburn v. Sewell, 5 H. & J. 212. See Pierce v. Benjamin, 14 Pick. 356, 361.

(f) Green v. Sperry, 16 Verm. 390.

(g) Hart v. Skinner, 16 Verm. 138.

No. 3554.

Book 4, tit. 9, chap. 2, sec. 2, § 6, art. 2.

No. 3554.

dict is for the plaintiff, is, that he recover his damages and costs; its effect is to change the title of the property, so as to make it liable for the payment of the defendant's debts after satisfaction has been made; (a) and the defendant's title refers back to the time of the conversion.(b) The property is not changed by the default of the defendant, but by the recovery of the judgment against him, and the subsequent satisfaction.(c)

3554.-2. When the verdict is for the defendant, the judgment is, that he recover his costs.

(a) Rogers v. Moore, 1 Rice, 60; Chartram v. Smith, 1 Rice, 229; Robertson v. Montgomery, 1 Rice, 87; Osterhout v. Roberts, 8 Cowen, 43; Morris v. Berkley, 2 Řep. Const. Ct. 228; Hepburn v. Sewell, 5 Har. & John. 211.

(b) 5 Har. & John. 211.

(c) Carlisle v. Burley, 3 Greenl. 250.

of a nuisance, 24.

Absolute executors, who are, 145.

property, what, 668.

rights, remedy for injuries to the, 647.

Absque hoc, meaning of, 295.

Accord and satisfaction, what, 44.

parties to an, 44.

requisites of an, 44.

effect of an, 46.

Account, action of, 587.

parties to, 588.

for what cause, 591.

declaration, 592.

what damages recovered in, 593.

pleas and issues in, 594.

evidence to support, 595.

judgment quod computet in, 596.

proceedings before auditors in, 597.

final judgment in, 600.

proceedings in error in, 601.

books, when evidence, 406.

stated, what, 222.

action on an, 222.

Acquiescence, effects of, 362.