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said land where the alleged trespasses were committed, and Defence of which said owner was then seised thereof in fee, and the then an ease
ment by owner of the said land of the defendant, and which last-men
lost grant tioned owner was then seised in fee of the said land of the to claim
for tres defendant (but which deed has been lost or destroyed by
pass. accident), the said then owner of the said land where the alleged trespasses were committed granted to the then owner of the said land of the defendant, and to his heirs and assigns, a way for himself and his tenants and his or their servants on foot and with horses, carts, waggons, steam-engines, cultivators, and all other cattle, carts, carriages, and farm implements, from a certain public highway over the said land where the alleged trespasses were committed to the said land of the defendant, and from the said land of the defendant over the said land where the alleged trespasses were committed to the said public highway, for the more convenient occupation of the said land of the defendant ; and before the alleged trespasses, the person who then had the estate of the said then owner of the said land of the defendant demised the said land of the defendant with the appurtenances to the defendant, to hold the same thence for a term which has not yet expired, and by virtue of which said demise the defendant afterwards and before the alleged trespasses entered into the said land of the defendant, with the appurtenances so demised as aforesaid, and became and until and at the respective times of the alleged trespasses was possessed thereof, and the defendant, as and being such tenant of the said land of the defendant, was entitled to the said right for himself and his servants, and the defendant and his said servants broke and entered the said land where the alleged trespasses were committed for the purpose of using, and in using the said way, and in so doing necessarily trampled on and injured the crops growing thereon ; and because the said fence had been placed and was then wrongfully in the said way obstructing the same, the defendant and his said servants by his command necessarily broke down the said fence for the purpose of using the said way, doing no unnecessary damage in that behalf, which are the alleged trespasses complained of.
Trespass to the Plaintiff's Wall. 1. The plaintiff is the occupier of certain land situate at M., in Claim for the parish of M., in the county of C., and of a wall standing trespass to Claim for on the said lands and separating the plaintiff's said lands from trespass to certain lands adjoining, of which the defendant is the owner. a wall.
2. On the 5th day of January, 1877, the defendant broke and destroyed a portion of the said wall, whereby the plaintiff has been kept out of the possession and enjoyment of the said wall.
The plaintiff claims :-
tition of the act complained of.
Trespass to the Plaintiff's Yard. Trespass
1. The plaintiff was, at the date of the acts hereinafter comto the plaintiff's plained of, and still is, the owner and occupier of a certain yard yard. situate at the back of the G. Inn, at B., in the county of C.
The defendant is the occupier of a house abutting on the said yard, one of the doors of which house opens into the said yard.
2. The defendant has wrongfully placed a stone step in the plaintiff's said yard, in front of his said house, and has continued to keep the said stone step there till the present time.
3. The defendant also placed and fixed a scraper in the said yard, and has continued to keep the scraper so placed there till the present time.
4. The defendant also fixed a drain-pipe in the wall of his said house, which projects over the said yard, and from which water and refuse are discharged into the said yard.
5. By means of the premises the plaintiff's yard is injured, and the use of the said yard and the way over it obstructed.
The plaintiff claims :-
defendant, his servant and agents, to desist from
stone step, pipe, and scraper.
(3.) Such further relief as the nature of the case may require. Defence of
Defence of Immemorial User to an Action for Trespass to Land. imme- At the time of the alleged trespass the defendant was seised morial
in fee of certain lands situate at M., in the parish of in the county of F., and he and all those whose estate he then had Defence therein, from time whereof the memory of man runs not to the of immecontrary, enjoyed a way on foot and with cattle and with car- user to riages [state the nature of the right of way according to the facts] claim for
trespass. from a public highway over the said land of the plaintiff to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway at all times of the year, for the more convenient occupation of the said land of the defendant, as to the said land appertaining, and the alleged trespass was a user by the defendant of the said way.
Action by Trustee in Bankruptcy for Conversion of Horses. 1. The defendant is a horse-breaker and livery-stable keeper Claim for
conversion carrying on his business at K., in the county of W.
(a) This action lies for damages for the conversion, as it is called, of When the plaintiff's goods, and in order to maintain it the plaintiff must show : trover lies. 1st. That he had a general or special property in the goods and an actual or constructive possession or right of possession. 2nd. A wrongful conversion by the defendant; and 3rd. Damages, being the value of the goods.
Property and possession.] - Where there is a general and special As to proowner, but the general owner has not transferred his right to the pos- perty and session, he may maintain the action, as where the latter delivers possession possession to a carrier, for in these cases the bailee is only the servant of as essenthe bailor (Gordon v. Ilarper, 7 T. R. 12); though the bailee transfers tials in them to another, even although the latter be a bona fide purchaser, action. unless sold in market overt. (Wilkinson v. King, 2 Camp. 335.) 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. Ilarper, supra; and see 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
Claim for 2. In or about the month of May, 1874, one A. W., being conversion the owner of two roan cob horses, delivered them to the deof horses.
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 former refuse to re-deliver it, maintain the action against him. (Roberts
v. Wyatt, 2 Taunt. 268.) When a A joint owner or tenant in common of goods cannot maintain this joint owner action against a co-owner in respect of any act of the latter not inconsismay sue tent with his ownership; but if the latter does an act inconsistent with co-owner the joint ownership, such as a complete destruction of them (Jacobs r. for conver- Seward, L. R.5 H. L. 464), or a sale in market overt (Barton v. Williams. sion. 5 B. & A. 403), 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 is, however, now settled that the sale of an entire chattel by a co-owner, which does not wholly deprive the other of the power of repossession, is not a conversion, as it only operates on the undivided share of the vendor ; but it would be otherwise if sold in market overt, as that would change the property in the whole chattel. (Harper v. Godsell, L. R. 5 Q. B. 422.) 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. 315.) And it has been held that one member of a friendly society could not maintain the action against another member who removed and delivered to a stranger a box containing money (both belonging to the society), which was deposited with the members. (Holliday v. Camsell,
1 T. R. 658.) Vendee of Another instance of the rule that the owner of goods to which he goods not has not the right of immediate possession cannot maintain this action, paid for is that where goods are sold without credit, the buyer cannot maincannot sue tain trover for them unless he has tendered the price, though by the vendor for agreement to purchase, the property has vested in him (Bloxham v. refusal to Sanders, 4 B. & C. 941; Martindale v. Smith, 1 Q. B. 389; Page v. deliver Eduljer, L. R. 1 P. C. 127, 145); or even where the goods are sold on them. credit, but with an arrangement for their delivery by instalments. In this
case, if the vendee 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. (Ex parte Chalmers, L. R. 8 Ch. 289; Morgan v. Bain. L. R. 10 C. P. 15; Ogg v. Shooter, L. R. 10 C. P. 159.) 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. (Vill
gate v. Kebble, 3 M. & Gr. 100.) Special On the other hand, a person who has a special ownership may mainproperty tain the action where he has the right to immediate possession, such as gives right an agister of cattle (Br. Abr. Tresp. 67), or a sheriff in possession under to sue.
an execution. (Ex parte Williams, L. R. 7 Ch. 314.) But a landlord 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,
fendant, and he received them in order that he might break in Claim for
conversion the same.
but by whom they have never been received. (Fowler v. Donn, 1 B. & P. 47; and see Erans v. Nichol, 3 M. & G. 614; Morison v. Gray, 2 Bing. 260 ; and Sargent v. Vorris, 3 B. & A. 277, for other instances.)
As against wrongdoers.] – Mere possession is sufficient to support Mere posthis action by the person who had possession against a wrongdoer who session cannot show a better title in himself, or an authority to keep possession sufficient ander a better title. (Armoury v. Delamirie, 1 Sm. L. Cas. 7th ed. 357; against Elliott v. Kemp, 7 M. & W. 312.) So the finder of goods, though picked
wrong. up in the house of a third person. (Bridges v. Ilaw kesworth, 21 L. J. doers. Q. B. 75. See for other instances Sutton v, Buck, 2 Taunt. 302 ; Buckley v. Gross, 32 L. J. Q. B. 129 ; Burton v. IIughes, 2 Bing. 173 ; Northam v. Bonden, 24 L. J. Ex. 237 ; Rowe v. Brenton, 8 B. & C. 737 ; Taylor v. Parry, 1 M. & Gr. 604; Branker v. Melyneux, 3 M. & Gr. 84; Bourne y. Fosbrooke, 34 L. J. C. P. 161.)
What constitutes conversion.]-Conversion is constituted either by an What act of direct conversion or by a demand by the plaintiff and a refusal by constitutes the defendant to deliver the goods to him. An unlawful taking of the conversion. goods out of the possession of the owner is a conversion (Powell v. Hlayland, 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. (Iliort 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. llencage, 12 Mod. 519.) Semble, 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 When misin the ordinary course of business at a place directed, is no conversion, delivery by although the goods were delivered to a person not intended by the
carrier a sender. (McKean v. McIvor, L. R. 6 Ex. 36.) So if a carrier after conversion. 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. 1. N. . Rail. Co., L. R. 5 Ex. 51.) Where goods were by mistake consigned to the defendant, who by his act, though bona fide, enabled a third person to obtain delivery of them, whereby they were lost to the owner, this was held to be a conversion by the defendant. (IIiort v. Bott, supra.)
Taking goods by assignment from a person having no right to assign Assignee them, is a conversion by the assignee. (Marston v. Phillips, 9 L.T. N. S. or vendee 289.) Semble, however, there should be a demand and refusal in such a of goods case. (X Combie v. Davies, 6 East, 538.) A person may of course dis- from perpose of goods fraudulently bought, but the sale is invalid, and a person son having to whom they afterwards come through various regular and bonâ fide no title. sales, and who breaks them up, is liable in trover. (Forler v. Hollins, L. R. 7 Q. B. 616, 633, Ex. Ch.; aff. in H. of Lords.)
But where goods are placed in the hands of a factor for sale, a person whom the factor authorises to sell them and reimburse himself for the