and a verbal demand is made at the same time, but not referring to the written, and complete in itself, the demand may be proved in either form.(1) It has been held, that a written demand of the goods, or of the amount of the sale, having been left at the defendant's house, is sufficient, and that it is not necessary to make a personal demand.(2)

written docu

In an action for a bond, or other document in writing, (a) Trover for the description of the bond, as proved, must correspond ment. with that in the declaration in point of date, sum, and other particulars; which is the reason, why a very general description on the record will suffice.(3)(b) The plaintiff in this action will be allowed to give parol evidence of the contents of the document, to support the general description in the declaration, without having given a previous notice to the defendant to produce the original. (4)(c)

(1) Smith v Young, 1 Campb.

440.

(2) Logan v Houlditch, 1 Esp. N. P. C. 22. Thompson v Shirley, 1 Esp. N. P. C. 31.

(3) Wilson v Chambers, Cro. Car. 262. 3 Bos. and Pull. 145, 146.

(4) How v Hall, 14 East, 274. See Treat. on Evid. vol. 1. p. 477.

(a) Trover will lie for a promissory note in the hands of a third person; but not for a note which has been discharged and remains in the hands of the payee. Todd v Crookshanks, 3 Johns. Rep. 432.

(b) Van Nankin v Wickham, 2 Southard's Rep. 509. acc. Where in trover for a promissory note, the declaration alleged that the note in question was to pay to the plaintiff or his order, "a certain sum of money, to wit, the sum of one hundred and eighty dollars," it was held that the videlicit did not dispense with proof of the precise sam as alleged, and therefore if the note proved to be in the possession of the defendant, was for three hundred dollars, the variance was fa. tal; but the plaintiff might have stated that the note was of great value, to wit, of the value of one hundred and eighty dollars. Bissel v Drake, 19 Johns. Rep. 66.

(e) It is a general rule applicable to all civil actions and to criminal cases, that where the form of the action gives the party notice to be prepared to produce the instrument, if necessary to falsify the evidence of the other party, it is not necessary to give notice to produce

Trover for a

ship.

121

General issue: Defendant's evidence.

Where the action is for converting a ship, the mere fact of the plaintiff's possession, as owner, is sufficient prima facie evidence of ownership, against a wrongdoer. And though he may have gained possession under a bill of sale, which is absolutely void, still, if he has actual possession, he may maintain the action against a person, who has no colour of right.(1) But in many cases it will be necessary to give documentary evidence of the plaintiff's title to the ship, (as, where the defendant claims it as his property, or where the additional evidence of title has been rendered necessary by some contrary proof on the part of the defendant,) and then his title must be established by proof of a bill of sale, regularly executed, and conforming with the several requisites of the registry acts.(2)

Under the general issue of not guilty, the defendant will be at liberty to prove his title to the property in question; for if the property belonged to him, he cannot be charged with a wrongful conversion. Or he may disprove the plaintiff's title, by showing that the goods belonged to another person, under whom he claims; thus, if he took the goods out of the plaintiff's possession, it will be a good defence in this action, that he took them by the order of one to whom they belonged. (a) Or the defendant may prove,

(1) Sutton v Ruck, 2 Taunt. 302. Robertson v French, 4 East, 136. The case of Sheriff v Cadel 2 Esp. N. P. C. 616., must be

the instrument. 13 Johns. Rep. 92.
Rep. 293.

considered as overruled.

(2) See evidence in action on policy of insurance, supra.

Hardin v Kretsinger, 17 Johns.

Bissel v Drake, 19 Johns. Rep. 66. The assignee of a

bond may maintain trover for it, in his own name, against the obligor who had got it into his possession and converted it.

ley, 12 Johns. Rep. 484.

Clowes v Haw

(a) It has been held that a defendant in trover, may shew a paramount title in a third person, without, it seems, in any way connecting himself with that person in the same manner as an outstanding title is a defence in ejectment. Schermerhorn y Van Volkenburgh, 11 Johns.

that the plaintiff had before recovered damages for a conversion of the same goods, in an action of trover against J. S.; for this recovery vests the property in J. S., and the plaintiff has damages in lieu of the goods; in a second action, therefore, he cannot say, they are his property.(1)(a)

The defendant may also show, that he was joint tenant of the property with the plaintiff, or tenant in common, or (1) Adams v Broughton, 2 Str. 1078.

Proof of joint

tenancy, &c.

Rep. 529. Kennedy v Strong, 14 Johns. Rep. 128. Rotan v Fletcher, 15 Johns. Rep. 207. 13 Johns. Rep. 128. But in an action of trover for the conversion of goods which the defendant had recei ed from the plaintiff as his factor, the defendant is precluded by his admissions, made subsequently to the conversion, of property in the plaintiff from shewing that the plaintiff's property in the goods had been divested previously to his receiving them. Kennedy v Strong, 14 Johns. Rep. 128. The defendant may give in evidence, that the sale under which the plaintiff claims was made without the authority of the owner, or that it was made in fraud of his creditors. Rotan v Fletcher, 15 Johns. Rep. 207. So, where there has been a levy under an elder execution, and the debtor is permitted to remain in possession of and use the property, and there is afterwards a levy under a junior execution, in an action of trover brought either by the creditor, or the officer who made the first levy, against the person making the second levy, the defendant may, to establish the fraud, produce evidence that the creditor permitted other property of the. debtor levied upon at the same time with that which is the subject of the action, to continue in his possession. Farrington and Smith v Sinclair, 15 Johns. Rep. 428. Farrington and Smith v Caswell, 15 Johns. Rep. 430.

(a) If a trespasser takes a chattel into his own possession and the owner sues and recovers damages for the specific chattel so taken and retained, the recovery and execution done thereon, will change the property by operation of law, on the principle that solutio pretii, emtionis loco habetur; and this seems to be the rule both in the French and the civil law, where the transfer by such means is considered as a complete and absolute change of title. Vide urtis v Groat, 6 Johns. Rep. 168. Betts and Church v Lee, 5 Johns. Rep. 348.

122

Evidence in

of demand and refusal.

parcener (1) one of these co-tenants cannot maintain trover against another, on account of the unity of possession, which subsists between them;(a) but if one joint tenant, or tenant in common, or parcener, destroy the common property, (b) he will then be liable to this action.(2) The defendant cannot, under the general issue, give evidence of a joint tenancy, or tenancy in common, between the plaintiff and a third person;(3) but as the plaintiff can only recover damages for the value of his share of the property, (4) such evidence is admissible, for the purpose of ascertaining the amount of damages.

If the evidence of conversion is that the defendant reanswer toproof fused to deliver the goods on the demand of the plaintiff, the defendant, in answer to this, may show, that, at the time of the demand, the goods were lost or stolen(c) out of his possession,(5) or taken out of his custody under an execution ;(6) or that he refused, on the ground of the plaintiff's not being the true owner;(7) or that the goods were out of his possession and power, without his default;(8) or that in fact there was no conversion, and that plaintiff might at any time have taken possession of them if he had chosen; or that the act, which is charged against

(b) Or sell it.

Wilson and Gibbs v Reed, 3 Johns. Rep. 175. et vide Thompson v Cook, 2 Southard's Rep. 580.

(c) Vide ante, p. 119 and note ibid.

him as a wrongful conversion, was from necessity, (as, where the defendant, the master of a ship, threw the goods into the sea, in order to prevent the ship from sinking ;(1) or that the goods were damaged by misfortune, while the defendant interfered with them only for the purpose of assisting and benefiting the owner, as, where he took the plaintiff's boat to go over to his own boat, which was in the care of the plaintiff and then on fire, for the purpose of putting out the fire, and, as he was passing over, the plaintiff's boat sunk.(2)

In answer to the proof of a demand and refusal, the de- Lien. fendant may show, that he had a right to detain them under a lien. (a) But this will not be a good defence, if the plaintiff, at the time of the demand, made a formal tender of satisfaction, offering to discharge the defendant's claim. (b) And if the defendant insisted on his right to detain the goods, not on the ground of his having a lien upon them, but on some other ground quite distinct, (as, on the plea that the goods were his property,) without noticing his claim of a lien, he cannot at the trial, for the first time, resort to such a defence, which he must be understood to have waived.(3)(c) And a general right of detaining goods

(1) Bird v Astcock, 2 Bulstr. P. C. 166. 280.

(2) Drake Shorter, 4 Esp. N.

(3) Boardman v Sill, 1 Campb. 410.

(a) Vide Skinner v Upshaw, Ld. Raym. 752. Yorke v Granaugh, Ld. Raym. 867.

(b) Vide 2 Saund. 47 e. York v Grindstone, Salk. 388 pl. 2. Chapman v Allen, Cro. Car. 271. Bishop & others v Ware, 3 Campb. 360.

(e) Where the assignee of a bill of lading demanded the goods of the master of the vessel, and tendered him a sum of money for the freight, but whether enough did not appear, and the master refused to deliver the goods, assigning as a reason, that he was ordered by the ship owners not to deliver them, and made no objection to the tender of the freight, he was held to have waived any tender, and his refusal to deliver was consequently a conversion of the goods. Judah and others v Kemp, 2 Johns. Cas. 411.

123