cense or authority from the plaintiff himself, trespass does not lie against him, though he abuses his license by misfeasance. 6 Conryns, Trespass D.

The opinion of the Court is, that upon the facts in the case, an action of trespass cannot be supported.

Verdict set aside.1

SWIFT v. MOSELEY...

SUPREME COURT, VERMONT. 1838.

10 Vermont 208.

TROVER, for two oxen, three cows and nine sheep.

On the trial of the cause in the county court, it appeared in evidence, that, in the spring of 1835, the plaintiff leased a farm, lying in Bridport (of which he was possessed in right of his wife), together with the above mentioned cattle and sheep, to one Jirah Swift, for the term of one year. By the terms of said lease, the plaintiff and said Jirah Swift, were, at the end of the year, to divide the profits of the farm and the increase of the stock, equally between them, which stock was to remain upon the farm during the year, unless sold or taken off by the consent of the plaintiff and said Jirah Swift; that some time in the month of August, 1835, the said Jirah Swift sold said cattle and sheep to the defendänts, without the consent of the plaintiff, and absconded, and that the defendants, immediately after making the purchase, drove the cattle and sheep away from the farm. The plaintiff introduced testimony tending to prove, that the defendants knew that Jirah Swift had no right to dispose of the cattle and sheep, and that they purchased them much under their value. Upon this evidence, the county court decided, that this action could not be sustained, as the plaintiff brought the suit previous to the termination of said lease, by the terms of which he had parted with his right of possession of the property in question, during its continuance, and rendered a judgment for the defendants, to which decision the plaintiff excepted.

REDFIELD, J. It seems to be well settled, that the plaintiff, in trespass de bonis asportatis, or trover, in order to maintain the action, must have had, at the time of the injury complained of, either the actual custody of the thing injured or taken, or a property in it, either general or special, with the right to immediate possession. If he had the actual custody of the thing, even wrongfully, he may maintain the action against every one, whose right is not superior to his. Perhaps a mere servant could not be said to have any such custody. His possession is that of the master. The general owner of

1 Cf. Restatement, Torts (1934) § 278 (2).

a chattel may always maintain the action, unless he have parted with the possession, for a "definite term." Ward v. Macauley, 4 T. R. 489. Lord Kenyon in that case intimates an opinion, that trover will lie, but in Gordon v. Harper, 7 T. R. 12, it is expressly held, that case is the only remedy for an injury done to the thing bailed, during the continuance of the bailment.

In the present case it is contended, that the act of the lessee or bailee, in selling to the defendants, did, ipso facto, determine his right, and revive the right of the plaintiff to immediate possession. If so, the plaintiff may maintain this action. It may be well to inquire what acts will. determine a bailment of this character.

It is certain the act of a mere stranger will not operate to revive the plaintiff's right to immediate possession. Any misuse or abuse of the thing bailed, in the particular use for which the bailment was made, will not enable the general owner to maintain trespass or trover against the bailee. His only remedy is case. But if the thing be put to a different use from that for which it was bailed, by the consent of the bailee, we think the bailor may maintain trespass or trover.

It has been long settled that if the bailee kill or destroy the thing bailed, trespass or trover will lie. Coke's In. a. 53. It was early held, too, that the interest of the tenant in standing trees was so far determined by their being severed from the freehold, that the landlord might maintain trespass.

In the case of Farrant v. Thompson, 5 Barn. & Ald. 826, found in the 7th Com. Law R. it was held that machinery, leased and by the lessee severed from the freehold, became instanter re-vested in the lessor, and he might maintain trover even during the continuance of the term. The case is expressly put by the court upon the ground, that the lessee, by his wrongful act, forfeits his right, and thus "puts an end to his qualified possession." If so in that case, niuch more in this, where the bailee sells the property. The same doctrine here decided is held in the case of Sanborn v. Coleman, 6 N. H. R. 14.

The judgment of the County Court is reversed and a new trial granted.1

In COOPER V. CHITTY, 1 Burr. 20 (K. B. 1756), Lord Mansfield said of the action of trover (p. 31): "In form it 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.

1 As to the right of the bailor and bailee of a chattel, respectively, to maintain trover, see E. H. Warren, Trover and Conversion (1936) 3-28.

Where the defendant takes them wrongfully, and by trespass, the plaintiff if he thinks fit to bring this action, waves [waives] the trespass, and admits the possession to have been lawfully gotten.

Hence, if the defendant delivers the thing upon demand, no damages can be recovered in this action, for having taken it.

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."

NELSON v. BURT.

SUPREME JUDICIAL COURT, MASSACHUSETTS. 1818.

15 Massachusetts 204.

TROVER for 30 bushels of corn and 500 lbs. of cornstalks. At the trial on the general issue, in the Circuit Court of Common Pleas, the evidence was, that the corn and stalks were standing and growing on the plaintiff's land, and that the defendant cut and carried them away at one and the same time; and a verdict being returned for the plaintiff, under the direction of the court, exceptions were filed by the defendant, and the cause came up to this Court under the provisions of the late statute. Stat. 1817, c. 185, § 5.

Wood, for the defendant, insisted that the plaintiff had misconceived her action, and that the injury complained of, having been done to the realty, trespass was the only proper remedy.

J. M. Williams for the plaintiff.

Per Curiam. The plaintiff had a right to waive her demand for the trespass done to her close, and sue only for the value of the property taken, in trover. If the defendant was in fact a trespasser in entering the close, and cutting down the corn, the property of the corn, when cut, was in the plaintiff, and the taking it away was a wrong, for which the action of trover well lay.

Judgment on the verdict."

1 See, accord, Riley v. Boston Water Power Co., 11 Cush. 11 (Mass. 1853) (severance of earth).

In Lane v. Thompson, 43 N. H. 320 (1861), it was held that where a third person wrongfully cut trees on land in possession of a tenant for life, the remainderman could not maintain trespass quaere clausum fregit, although he might maintain case for injury to the reversion; but it was held that he could maintain trespass de bonis asportatis for carrying away the trees.

MATHER v. MINISTERS OF TRINITY CHURCH.

SUPREME COURT, PENNSYLVANIA. 1817.

3 Sergeant & Rawle 509.

ERROR to the Court Common Pleas of Montgomery county. This was an action of trover, brought by the defendants in error, plaintiffs below, for the conversion of a quantity of stone and gravel. It appeared in evidence, that the plaintiffs and their predecessors, had been long in possession of a church, and a small parcel of land adjoining it. Part of this land was inclosed and used for a burial ground, ever since the year 1727; the remainder was uninclosed. Near the boundary line of the land claimed by the plaintiffs, was a stone quarry, out of which the defendant dug and carried away the stone and gravel, which were the subject of this suit. The defendant gave evidence of his having taken stone and gravel from the quarry for a considerable time. He denied, in the first place, that it was within the limits of the land occupied by the plaintiffs; and contended, moreover, that if it were within these limits, still he had been so long in possession, that the plaintiffs could not recover in this action. The defendant insisted, also, that the plaintiffs could not maintain the action, because they had not shewn, that the title was out of the Commonwealth. The President of the Court charged the jury, that after so long a possession, a grant from the Commonwealth might be presumed. That if the defendant had an adverse and exclusive possession for twenty-one years, before the commencement of the action, the plaintiffs were barred; but if the jury should think, that the possession was not exclusive, but in common, then the law would adjudge it to be in the party who had the best right, and in that case, if the quarry was within the plaintiffs' claim, the possession would be in them, as the defendant had shewn no other title than what arose from his possession. The defendant contended, also, that trover was not the proper action, even though the right to the land, was in the plaintiffs. The defendant excepted to the charge of the Court.

TILGHMAN C. J.1 . . . Although from the evidence in this case, as we have it mentioned in the Judge's charge, I can have no doubt of the right of the plaintiffs, to recover in an ejectment, yet there is one particular, in which it appears to me, that the law was laid down inaccurately, and the jury may have been misled by it. I understand the substance of the charge, to be, that although the jury should be of opinion, that the defendant had the exclusive and adverse possession of the land from which the stones were taken, for any time less

1 Only so much of the opinion of Tilghman, C. J., as relates to the right of the plaintiff to bring trover is given.

de

than 21 years, yet the plaintiff might recover in this action, of trover. This is not the proper form of action, to try the title of land, nor have I been able to find any case where it has been sustained for that purpose, although there are many cases, where it has been brought for the conversion of wood, coals, &c. when the right of the freehold was not claimed by the defendants. The inconvenience of trover to cide the title of the land would be great; for, being a transitory action, the trial might be transferred to a distant county, or even to a distant state, if the defendant should happen to be found there. Neither do I find any case, where trover has been supported, when the possession of the land was held adversely to the plaintiff.1 That the law draws the possession to the property, of personal chattels unconnected with land, may be true, and yet it does not follow, that the possession is drawn in like manner, to the property of that kind of chattel, which was part of the soil, until severed from it; when the soil itself, at the moment of severance, was held adversely by another. I should rather suppose, that in such case, he who had possession of the land, had possession also of the stones dug from it, and against him, another person who had the right to the possession of the land, could not support trover. He certainly could not support trespass. But he would not be without remedy; for he might first resover [recover] the possession by ejectment, and then recover the mesne profits in an action of trespass. Upon the whole, as I find no authority for supporting an action of trover, by him who has the right of possession, against him who has the actual and adverse possession, and sets up title to the land, and, as it appears to me, that many inconveniences might flow from such an action, I am of opinion, that the charge of the Court of Common Pleas, is, in that respect, erroneous, and, therefore, the judgment should be reversed, and a venire facias de novo awarded."

Judgment reversed, and a venire facias de novo awarded.

1 A part of the opinion, in which Tilghman, C. J., distinguished Player v. Roberts, W. Jones 243 (K. B. 1630), is omitted.

2 As to trespass for mesne profits, see p. 137, n. 3, infra.

3 The concurring opinion of Duncan, J., is omitted. He said, inter alia (p. 516): "Trover never can be the mode in which the title to freehold can be determined. . . . The title to land, can never be directly inquired into in a personal action . . .” Cf. p. 161, n. 1, infra.

4 The rule is the same as to replevin. See Powell v. Smith, 2 Watts 126 (Pa. 1833). And as to assumpsit for the value of the severed property. See Bigelow v. Jones, 10 Pick. 161 (Mass. 1830); Downs v. Finnegan, 58 Minn. 112 (1894); Park v. Morris, Layfield & Co., 63 W. Va. 51 (1907).