BOOK II. For what Injuries affecting a Man's Perfonal Property, an Action may be brought. H INTRODUCTION. AVING in the last Book taken Notice of the feveral Injuries affecting a Man's Person for which an Action may be brought, I fhall now confider in what Cafe an Action will lie for Injuries affecting his Property; and they divide themselves into two Sorts. 1. Such as affect his perfonal Property. 2. Such as affect his real Property. The Actions that may be brought for Injuries affecting his perfonal Property, are, 1. Deceit. 2. Trover. 3. Detinue. 4. Replevin. 5. Refcous. 6. Trespass. 7. Case for Misbehaviour in an Office, Trust or 8. Cafe for confequential Damages. CHAP 29 2 Danv. 543. 4, 5. Aleyn 91. Medina and 1 Raym. 593. Aleyn 91. Salk. 210. I Danv. 176. pl. 7. D CHAPTER I. Of Deceit. ECEIT properly lies where one Man does any Thing in the Name of another, by which the other is damaged and deceived; as if one without my Knowledge purchase a Quare Impedit in my Name, returnable in Banco, and after cause it to be abated, or me to be nonfuited. So if one forge a Statute Merchant in my Name, and thereupon a Capias is fued out, upon which I am taken, I may have a Writ of Deceit against him that forged it, and him that fued the Capias. But this Writ lies chiefly upon Recoveries obtained by Covin and Deceit. And in fuch Cafes where the Recovery is of Land, it is brought to restore the Party to the Lands and Profits And in other Cafes, fuch as Debt, &c. to give him Damages: But what I intend to take Notice of in the prefent Chapter, are Actions upon the Cafe in the Nature of a Writ of Deceit, which lie whereever a Perfon has by a falfe Affirmation, or otherwise, impofed upon another to his Damage, who has placed a reasonable Confidence in him ; as if a Man in Poffeffion of a Horfe, or a Lottery Ticket, fell it to another for his own; for Poffeffion of a perfonal Chattle is a Colour of Title; and therefore it was but a reasonable Confidence, which the Buyer placed in him, when he affirmed it to be his own. But it is incumbent on the Plaintiff in fuch Cafe to prove the Defendant knew it not to be his own at the Time of the Sale (for the Declaration must be, that he did it fraudulently, or knowing it not to be his own:) For if the Defendant had a reasonable Ground to believe it to be his Property (as if he bought it bona Fide) no Action will lie against him; but the Defendant cannot plead fuch Matter, but must give it in Evidence. So if the Vendor affirm that the Goods are the Goods of a Stranger, his Friend, and that he had an Authority from him to fell them, whereas in truth they are the Goods of another, and he had no fuch Authority, an Action will lie against him; and in fuch Cafe it will be fufficient for the Buyer to prove them the Goods of another, without proving that the Defendant knew them to be fo; (for it need not be averred in the Declaration) for the Deceit : Deceit is in his falfely affirming he had an Authority to If the Seller were out of Poffeffion of the personal Salk. 210. Salk. 211. Raym. 1118. If the Seller affirm the Rent of a Houfe to be moré Rifney and than it really is, whereby the Purchaser is induced to give Selby. more than it is worth, an Action will lie for the Deceit ; for the Value of the Rent is Matter which lies in the pri- Sid. 146. vate Knowledge of the Landlord and Tenant, and must be the fame to all. But if the Seller had only affirmed, that J. S. would have given fo much for it, whereas J. S. had never offered fo to do, no Action would lie, for such Affirmation could not deceive him in the Value; so if he had only affirmed it was worth fo much, for the Purchaser might inform himself of the Value. And fo it is in all Cafes, where the Purchaser may easily discover the true Value, or where the Thing may be of more Value to one I Sid. 146. Man than to another; as Jewels, Pictures, &c. Yelv. 20. In Chandler v. Lopus, which was Cafe, whereas the Cr. J. 41. Defendant having Skill in Jewels, had a Stone which he affirmed to be a Bezar Stone, and fold it as fuch to the Plaintiff: Judgment was arrefted, because the Declaration did not aver, that the Defendant knew it not to be a Bezar Stone, or that he warranted it to be one. But if a Merchant fell one Kind of Silk for another, whereby the Purchaser is impofed upon in the Value, hẽ may bring his Action; and though it appear upon Evi- Horn and dence that there was no actual Deceit in the Merchant, Nichols, Salk. 289. but that it was in the Factor beyond Sea; yet it will be fufficient to charge the Defendant; for he fhall be anfwerable for the Deceit of his Factor civiliter, though not criminaliter; for fince fomebody must be a Lofer, it is more reasonable that he that puts the Truft and Confidence in the Deceiver should be the Lofer, than the Stranger. If the Vendor affirm a Horfe to be found Wind and Butterfield Limb, whereupon the Purchaser Fidem adhibens gives fo and Burroughs, much; if the Horfe be blind, an Action will lie; but it Salk. 21. feems feems to be good Evidence in fuch Cafe on the Part of the Defendant, that the Defect is vifible, for then it cannot be reasonably intended that the Affirmation extended to it. And note, that if the first Contract with Warranty be broken off, the Warranty will not extend to a subsequent Sale. It has been faid, that if a married Man pretend to be fingle, and marry J. S. fhe may bring an Action to recover Damages for the Injury done her by his Deceit; but fuch an Action will not lie for a Man who is impofed upon by a married Woman, because the Conversation and Contract of the Wife will not bind the Hufband. And it may be doubted in the other Cafe, being Felony by Fac. as it is a general Rule, that where a Trefpafs is by Statute turned into Felony, the Trefpafs is marged; though in the Cafe of Garford v. Richardfon, Tr. 36 Car. 2. the Court of K. B. upon a Motion in Arrest of Judgment in fuch an Action brought by a Woman, gave Judgment for the Plaintiff, holding the Action to be maintainable. Salk. 654. Stir. 827. Hartop and G. 2. K. B. CHAPTER II. Of Trover. ROVER is a fpecial Action on the Cafe, which one Man may have against another, who hath in his Poffeffion any of his Goods by Delivery, Finding or otherwise, or fells or makes ufe of them without his Consent, or refuses to deliver them on Demand; and it is for Recovery of Damages to the Value of the Goods; and therefore the Declaration ought to contain convenient Certainty in the Description of the Things, fo that the Jury may know what is meant thereby; but it need not contain fo much certainty as an Action of Detinue, because that is for the Recovery of the Things themselves, and therefore Trover for 20 Ounces of Cloves and Mace has been holden good. So for a Parcel of Diamonds. If a Gentleman lodge Jewels fealed up in a Bag with a Banker for fafe Cuftody only, and the Banker break open the the Bag, and pawn the Jewels to another, the Gentleman may bring Trover against the Pawnee, for he shall not be anfwerable for the Deceit of the Banker, as he gave him no Power to do that Act in which the Deceit lies; and therefore it differs greatly from the Cafe, taken Notice of in the laft Chapter, of the Merchant answering for the Deceit of the Factor. The Converfion is the Gift of the Action, and the 1 Danv. 23. Manner in which the Goods came to the Hands of the Defendant is only Inducement: And therefore the Plaintiff may declare upon a Devenerunt ad Manus generally, or fpecially per Inventionem, (though the Defendant came to the Goods by Delivery), or that the Defendant fraudulently at Cards won Money of the Plaintiff from the Wife of the Plaintiff; and this being but Inducement, need not be proved; but it is fufficient to prove Property in himself, Poffeffion to have been in the Defendant, and a Converfion by him. In the Declaration, the Converfion was laid to be on a Cr. J. 428. Day before the Trover; wherefore a Motion was made in Arreft of Judgment, but the Declaration was holden to be good, for the Poftea convertit is fufficient, and the Viz. is void. Str. 505. As to the Property, a special one is fufficient, and there- I Mod. 31. fore this Action may be brought by a Carrier or Bailee; or by a Finder, for that will enable him to keep the Thing against all but the rightful Owner. A Sheriff who has taken Goods in Execution may 2 Saund. 47. bring Trover for them, if they were taken away before the Sale. If an House be blown down and a Stranger take away Per Powel J. on the Timber, the Leffee for Life may bring Trover; for Midland Cirhe has a fpecial Property to make ufe of the fame (as if cuit, Salk. MSS. he would rebuild) though the general Property be in the Reverfioner. A Lord who feizes an Eftray or Wreck, may before Sir William the Year and Day expired maintain Trover against a Courtney's Stranger; for he has more than a Poffeffion, viz. a Pof- Cafe, C. B. feffion that will turn into a Property. Salk. MSS. Berks, 1750, per Clarke. Bar. S. P. And Property is fufficient without Poffeffion; therefore Lord Cullen's Cafe at Bar, on the Trial of an Ejectment for a Mine it was holden, K. B. that a Recovery in Trover for a Parcel of Lead dug out of the Mine was no Evidence of the Plaintiff's Poffeffion. |