Gambar halaman
PDF
ePub

sion to collect a bill or note belonging to another without the authority of the owner, or to sue a note to judgment, without such consent. The cancellation of a certificate of membership in a Board of Trade," or the wrongful cancellation of stock,' amounts to a conversion.

Not every tortious act, however, which effects personal property is a conversion. Damaging personal property, or even interference with the owner's use of the property, without depriving him of its possession does not amount to a conversion.13 Wrongful use of the chattel of another is not a conversion where there is no denial of the owner's title." Assertion of ownership unaccompanied by any act of ownership will not amount to a conversion. To constitute conversion, there must be either an actual conversion of the property to the use of the defendant, or a constructive conversion by failure to deliver up the property on demand. As a general rule, the question of intention is immaterial in determining whether or not there has been a conversion."

SECTION 36. DAMAGE TO PERSONAL PROPERTY.

The other form of trespass against personalty consists in its destruction or damage. As has already been stated, there must be some actual damage to sustain an action of this character. Thus in Marentille

59 Neb.,

13

• State vs. Omaha National Bank,

483. 10 Ruskin vs. Thorpe, 88 Ga., 779. 1 Olds vs. Chicago Open Board of

Trade, 33 III., App., 445. Carpenter vs. American Bld.,

390. In Lowry vs. Walker, 4 Vt., 76, it was held that the fact that a person not in possession of a chattel attacked by the sheriff forbade the sheriff to sell the property did

etc., Asso., 54 Minn., 403, 40

Am. St. Rep., 345. u Boobier vs. Boobier, 39 Me., 406. • Spooner Vs. Manchester, 133

Mass., 270, 43 Am. Rep., 514;

Drake vs. Shorter, 4 Esp., 165. so Burnside vs. Twitchell, 32 N. H.,

not constitute conversion. 16 Byrne vs. Stout, 15 Ill., 180. 17 Kenney vs. Ranney, 96 Mich., 617;

Cheshire R. Co. Foster, 51 N. H., 490; Rakestraw vs. Floyd, 54 S. Car., 288,

V8.

[ocr errors]

vs. Oliver,18 which was an action against the defendant
for striking the plaintiff's horse, the Court said: “I
think it was incumbent on the plaintiff below to state
an injury done to the horse, whereby the plaintiff
suffered damage; that he was, in consequence of the
blow, bruised or wounded and unable to perform serv-
ice; or that the plaintiff had been put to expense in
curing him, or the like. All the precedents of declara-
tions for injuries done to domestic animals, as far as
my recollection goes, are in that way.” ”
SECTION 37. DEFENSES TO ACTIONS FOR TRESPASS TO

PERSONAL PROPERTY,
Alleged trespasses to personal property may be
justified for reasons similar to those which justify acts,
which would otherwise be trespasses against the per-
son. Self defense is always a good defense to an action
for damage to personal property. Thus, if a person
is attacked by a dog, he may kill the dog to protect
himself; 19 a dog which is reasonably suspected of being
mad may be lawfully killed even before it has attacked
anyone.20 A dog may also be killed when it is destroy-
ing poultry; 21 but damages to crops by cattle or poultry
is not a sufficient excuse for killing such animals.22

Property may be destroyed to check the spread of a fire or for other public purpose; goods may be thrown overboard to lighten the ship in case of a tempest,23 and proper legal process is always a justification for the taking or destruction of personal property.

24

18 2 N. J. L., 358.
19 Reynolds vs. Phillips, 13 Ill.

App., 557; Keck vs. Halstead,

3 Lutw, 481. 30 Wolf vs. Chalker, 31 Conn., 121. * Leonard vs. Wilkins, 9 Johns

(N Y.), 233. * Clark vs. Keliher, 107 Mass., 406. 23 Manse's Case, 12 Cake, 63. In

such a case under the principle

of the maritime law known as "general average” the owners of goods on the ship which have been saved must pay their proportional share towards the value of the goods

thrown overboard.
» Fitzgerald vs. Elliott, 162 Pa.

St., 118, 42 Am. St. Rep., 812;
Wall vs. Farnham, 46 Me., 525

SECTION 38. WHO MAY BRING AN ACTION FOR TRES

PASS TO PERSONALTY. In order to maintain an action for trespass to personal property the plaintiff must either have the actual possession of the property or constructive possession, with right to immediate possession.2 Bare possession is sufficient to sustain an action against anyone but the rightful owner; 28 while, on the other hand, the right of the general owner to bring such action is barred by outstanding possession in another.” 2 Dunlap vs. Steele, 80 Ala., 424;

[ocr errors]

38 Am. Dec., 540. Coe vs. English, 6 Houst 20 Laing vs. Nelson, 41 Minn., 521; (Del.), 456; Howe vs. Farrar,

Entriken Vs. Brown, 32 Pa. 44 Me., 233; Haythorn vs.

St., 364.
Rushforth. 19 N. J. L., 160, en Bourne vs. Merritt, 22 Vt.,

429.

CHAPTER VII.

TRESPASS ON THE CASE.

SECTION 39. CLASSIFICATION OF WRONGS REDRESSED

BY TRESPASS ON THE CASE. The scope of the action of trespass on the case is very broad, embracing not only actions for indirect trespass and consequential injuries, but also actions where the right of action is based upon the negligence, deceit or malice of the defendant. The remaining six chapters of this subject will be taken up with the treatment of the various wrongs redressed under this form of action. Chapter VIII has as its subject the various forms of injuries caused through intermediate agencies. Chapter IX will take up injuries to real property-waste and nuisance. Chapter X, actions for deceit; Chapter XI, wrongs where malice is an element, and Chapter XII, slander and libel and Chapter XIII, injuries caused by negligence.

Actions for infringements of Patents and Copyrights, which are a species of trespass on the case, will be discussed under these titles in the next volume of this series.

• Patents, Volume V, Subject 15

Copyrights, Volume V, Subject 16.

Malice may be an element in

either trespass or trespass on
the case actions, but to prevent
repetition is treated in its en-
tirety under the present head-
ing.

Vol. IV-6.

8)

« SebelumnyaLanjutkan »