agents, to desist from committing the said nuisances, or others of a like nature, and commanding them to remove the said stone step, pipe, and scraper.

6. Claim by Occupier of Land for Trespass and Owner for Trover.

1. The plaintiff A.B. is the owner of a field called E. in the parish of F., in the county of G., and the plaintiff C.D. is the tenant and occupier thereof.

2. On the 1st of May, 1880, the defendant broke and entered the said field and trespassed therein, and cut down and removed and converted to his own use two oak trees growing thereon.

The plaintiff A.B. claims £ damages for the conversion of the said trees.

The plaintiff C.D. claims £ damages for the said trespass.

7. Claim by Lord of the Manor for Trover and Occupier of the Land for Trespass.

1. The plaintiff A.B. is the tenant and occupier of a farm of copyhold tenure in the manor of Z. The plaintiff C. D. is lord of the said manor.

2. The defendant, on the 10th of June, 1879, broke and entered the said farm and trespassed thereon, and cut down and removed a fir-tree growing thereon.

The plaintiff A.B. claims damages for the said trespass.

The plaintiff C.D. claims damages for the conversion of the said tree.

8. Claim for Trespass to a Mine, and Trover of a quantity of

Coal.

1. The plaintiffs are the owners in fee of certain lands in the parish of C., in the county of D., under which are valuable seams of coal, which they are engaged in working.

2. The defendants on divers days between the 1st of May, 1879, and the 5th of November, 1879, broke into and entered upon the said mines of the plaintiffs, and dug levels in and worked the said mines, and dug up and carried away and con

verted to their own use large quantities of the plaintiffs' coal and erected barriers and other obstructions in and upon the said mines, whereby the plaintiffs have been prevented from having access to and working their mines and getting coal therefrom, and have been hindered in carrying on their business as colliery proprietors.

The plaintiffs claim :-

(1) Damages for the trespass and conversion of the said quantities of coal;

(2) An injunction restraining the defendants, their servants or workmen, from repeating the acts complained of.

9. Claim for Trespass to Land, and Defence of a Way of

Necessity.

1. The plaintiff is the owner and occupier of P. Farm, in the county of A.

2. On the 1st of January, 1880, the defendant broke and entered the said farm and trespassed thereon with a horse and cart, and has threatened to repeat the said acts of trespass in the assertion of an alleged right of way.

The plaintiff claims an injunction restraining the defendant, his servants and workmen, from any repetition of the said acts of trespass.

Defence.

1. On the 20th of July, 1879, the defendant was the owner of the P. Farm, now the property of the plaintiff, as well as of a farm called T., which he now occupies. The defendant's farm, called T., at that time was and still is completely landlocked by the plaintiff's said farm, and for a long time the defendant, his tenants and servants, in going to and from the said T. farm, on foot and with carts and horses, were compelled to pass along a road which traversed the P. farm.

2. On the said 20th of July the defendant conveyed the said P. farm to the plaintiff.

3. The defendant submits he is entitled to a right of footway and carriage-way on the said road to and from the said T. farm into the main road at L.:

(a) As a way of necessity;

(b) By reason of an express reservation of such right of way in the deed of conveyance of the said 20th of July. 4. At the time mentioned in the statement of claim the defendant entered upon the said road in order to pass from the said T. farm into the main road at L. as he had been accustomed to do, and not otherwise, which is the grievance complained of.

Reply.

The plaintiff joins issue upon the statement of defence.

When

trover lies.

As to property and possession

as essen.

tials in action.

Trover (a).

1. Claim for Conversion of Goods.

The plaintiff has suffered damage by the defendant wrongfully depriving the plaintiff of two casks of oil, by refusing to give them up on demand.

(a) This action lies for damages for the conversion, as it is called, of the plaintiff's goods, and in order to maintain it the plaintiff must show : 1st. That he had a general or special property in the goods and an actual or constructive possession or right of possession. 2nd. A wrongfu! conversion by the defendant; and 3rd. Damages, being the value of the goods.

Property and possession.]—Where there is a general and special owner, but the general owner has not transferred his right to the possession, he may maintain the action, as where the latter delivers possession to a carrier, for in these cases the bailee is only the servant of the bailor (Gordon v. Harper, 7 T. R. 12). However, the plaintiff must show that he had a right to the immediate possession in order to maintain this action. Thus, if the goods are let for a term unexpired (Gordon v. Harper, supra; Cooper v. Willomatt, 1 C. B. 672), or where they are in the possession of a person having a lien on them (Millgate v. Kebble, 3 M. & Gr. 100), the general owner cannot maintain the action. In these cases the bailee would be the proper person to sue, unless he has done something which determines the bailment, in which case the right to the immediate possession by the bailor or general owner arises, and the latter then becomes the proper person to sue for a conversion. (Bryant v. Wardell, 2 Ex. 479; Fenn v. Bittleson, 7 Ex. 152.)

In the case of bailments which do not exclude the bailor from the right of immediate possession, such as a gratuitous loan or deposit, either the bailor or bailee may maintain the action. (Nichols v. Bastard, 2 C. M. & R. 659; Turner v. Hardcastle, 31 L. J. C. P. 193.)

A bailee or other person having a special property may, under some circumstances, maintain the action against the person having the general property in the chattel, as where the former delivers it back to the latter for a temporary purpose, he may after that purpose is satisfied, if the

Particulars:

Two casks of oil, value £20 each, £40.

The plaintiff claims £50.

former refuse to re-deliver it, maintain the action against him. (Roberts v. Wyatt, 2 Taunt. 268.)

A joint owner or tenant in common of goods cannot maintain this action against a co-owner in respect of any act of the latter not inconsistent with his ownership; but if the latter does an act inconsistent with the joint ownership, such as a complete destruction of the goods (Jacobs v. Seward, L. R. 5 H. L. 464), or a sale in market overt (Barton v. Williams, 5 B. & A. 403; Harper v. Godsell, L. R. 5 Q. B. 422), this amounts to a conversion of them, for which the other part owner can sue him in this action-at least, as regards the plaintiff's undivided part in the case of a sale. It has been held that the removal of entire chattels by one tenant in common without the consent or knowledge of the other, for the purpose of selling and appropriating the proceeds to his own use (semble, as opposed to an actual sale), does not amount to a conversion, though the removal has created a lien on them by a third party. (Jones v. Brown, 25 L. J. Ex. 345.)

Another instance of the rule that the owner of goods to which he has not the right of immediate possession cannot maintain this action, is that where goods are sold without credit, the buyer cannot maintain trover for them unless he has tendered the price, though by the agreement to purchase, the property has vested in him (Bloxham v. Sanders, 4 B. & C. 941; Martindale v. Smith, 1 Q. B. 389; Page v. Eluljee, L. R. 1 P. C. 127, 145); or even where the goods are sold on credit, but with an arrangement for their delivery by instalments. In this case, if the vendor becomes insolvent before all the instalments become due, the vendee cannot maintain trover for any instalment which has become due until he has tendered the price of any already delivered and not paid for, as well as that in reference to which the action is sought to be maintained. (Er parte Chalmers, L. R. 8 Ch. 289; 42 L. J. Bank, 2; Morgan v. Bain, L. R. 10 C. P. 15; Ogg v. Shooter, L. R. 10 C. P. 159; In re Phoenix Bessemer Steel Co., 4 Ch. D. 119; 46 L. J. Ch. 115.) So where the vendor of goods sold on credit stipulates for a lien until payment, though he gives vendee access to the goods by means of a key of the place where they are warehoused, to which the vendor also has access. (Millgate v. Kebble, 3 M. & Gr. 100.) In such circumstances the purchaser cannot maintain trover even as against a wrong doer. (Lord v. Price, L. R. 9 Ex. 54.)

When a
joint owner
may sue
co-owner
for conver-

sion,

Vendee of goods not paid for cannot sue vendor for refusal to deliver them.

On the other hand, a person who has a special ownership may main- Special tain the action where he has the right to immediate possession, such as property an agister of cattle (Br. Abr. Tresp. 67), or a sheriff in possession under gives right an execution. (Ex parte Williams, L. R. 7 Ch. 314.) But a landlord to sue. who distrains and impounds goods cannot maintain the action, as the goods are in the custody of the law. (Moneax v. Goreham, 2 Selw. N. P., 10th ed., 1351; and see Turner v. Ford, 15 M. & W. 212, per Parke, B.)

A person having a special property in chattels may, in some circumstances, maintain the action though the goods may have never come into his possession, as a factor to whom goods have been consigned, but by whom they have never been received. (Fowler v. Down, 1 B. & P. 47; and see Evans v. Nichol, 3 M. & G. 614; Morison v. Gray, 2 Bing. 260; and Sargent v. Morris, 3 B. & A. 277, for other instances.) Mere possession is sufficient to support this action by the person who Mere poshad possession against a wrongdoer who cannot show a better title in session

sufficient against wrongdoers.

2. Claim by Trustee in Bankruptcy for Conversion of Horses. 1. The plaintiff is the trustee of the estate of A. B. of C., who was adjudicated a bankrupt on the 3rd of May, 1880.

2. Prior to the said 3rd of May, 1880, the said A. B. de

himself, or an authority to keep possession under a better title. (Armoury v. Delamirie, 1 Sm. L. Cas. 7th ed. 357; Elliott v. Kemp, 7 M. & W. 312.) So the finder of goods, though picked up in the house of a third person. (Bridges v. Hawkesworth, 21 L. J. Q. B. 75. See for other instances Sutton v. Buck, 2 Taunt. 302; Buckley v. Gross, 32 J. J. Q. B. 129: Burton v. Hughes, 2 Bing. 173; Northam v. Bowden, 24 L. J. Ex. 237 : Rowe v. Brenton, 8 B. & C. 737; Taylor v. Parry, 1 M. & Gr. 604; Branker v. Melyneur, 3 M. & Gr. 84; Bourne v. Fosbrooke, 34 L. J. C. P. 164.)

What What constitutes conversion.]—Conversion is constituted either by an constitutes act of direct conversion or by a demand by the plaintiff and a refusal by conversion, the defendant to deliver the goods to him. An unlawful taking of the goods out of the possession of the owner is a conversion (Powell v. Hayland, 20 L. J. Ex. 82), provided the taking and detention be with the intention to convert them to the use of the taker or of some other person. or has the effect of destroying or altering their quality or nature; for a mere trespass, not interfering with the owner's dominion of the property. is not a conversion. An unauthorised act which deprives another of his property permanently or for an indefinite time, is a conversion. (Hiort v. Bott, L. R. 9 Ex. 86, 89.) The using a thing without the permission of the owner may amount to a conversion. (Kryworth v. Hill, 3 B. & A. 687.) Thus the wearing of a pearl. (Petre, Lord, v. Hencage, 12 Mol. 519.) It has been suggested that the conversion of a part is not conversion of the whole if the remainder continues in a fit state to be delivered up. (Philpott v. Kelly, 3 Ad. & E. 106, per Patteson and Coleridge, JJ.) The misdelivery of goods by a carrier is a conversion. But delivery delivery by in the ordinary course of business at a place directed, is no conversion. carrier a although the goods were delivered to a person not intended by the conversion. sender. (McKean v. McIvor, L. R. 6 Ex. 36.) So if a carrier after refusal to accept the goods at the consignee's address misdelivers them to another person, this is not a conversion if he has acted with reasonable care and caution with reference to such goods. (Heugh v. L. & N. W. Rail. Co., L. R. 5 Ex. 51.) Where goods were by mistake consigned to the defendant, who by his act, though bonâ fide, enabled a thir person to obtain delivery of them, whereby they were lost to the owner, this was held to be a conversion by the defendant. (Hiort v. Boti, supra.)

When mis

Assignee or vendée of goods

from person having no title.

Taking goods by assignment from a person having no right to assign them, is a conversion by the assignee. (Marston v. Phillips, 9 L. T. N. S. 289.) Semble, however, there should be a demand and refusal in such a case. (M.Combie v. Davies, 6 East, 538.) A person may of course dispose of goods fraudulently bought, but the sale is invalid, and a person to whom they afterwards come through various regular and bonâ fide sales, and who breaks them up, is liable in trover to the true owner. Fowler v. Hollins, L. R. 7 Q. B. 616, 633, Ex. Ch.: 7 H. L. 757. But when the plaintiff is not the owner of goods but has only a special property in them, as that of a pledgee, and he is induced by a fraudulent representation to part with his special property, he cannot follow them into the hands of the defendants who have obtained them bonâ fide and for good consideration. (Babcock v. Lawson, 4 Q. B. Div. 394; 5 Q. B. Div. 284; 48 L. J. Q. B. 408.)