with whom the female resided, though her mother be alive. Where the father permitted a married man to visit his daughter as a suitor, after having been cautioned; it was held, that he could not maintain an action for seducing her b. The daughter or servant is a competent witness to prove the seduction, and though not absolutely necessary to call her as a witness, an omission to do so would be open to great observation d. The plaintiff cannot give evidence of his daughter's good character and mode of deportment, until it has been impeached on the other side by general evidence of her unchaste conduct. If the daughter be asked whether she had not an illicit intercourse with other men previously, she need not answer the question. In aggravation of damages, the plaintiff may give evidence of the conduct and situation of his family at the times; and shew that the defendant was received in his house as a suitor to his daughter h. Though loss of service is the gist of this action, yet in estimating the damages, the jury are not confined to the mere amount of damage from the loss of service; they may allow compensation for the loss which the parent has sustained by being deprived of the society and comfort of his child, and by the dishonour brought upon the family, and also the expenses consequent upon the seduction. But it seems that the plaintiff will not be entitled to recover for a physician's fees, unless they have been actually paid; for he is not legally liable to pay them k. The defendant may shew, under the general issue, that the female seduced was not the plaintiff's servant, for it is the gist of the action 1. trover. THE action of trover was in its origin an action of trespass Origin of upon the case for the recovery of damages against a person who had found goods and refused to deliver them on demand to the owner, but converted them to his own use; from which finding (trouver) the remedy is called an action of trover. Though originally this action only lay where the defendant had found the goods, yet by a fiction of law, it was at length permitted to be brought against any man who having obtained the possession of goods by any means whatsoever, had wrongfully converted them to his own use. The gist of this action is the conversion and deprivation of the plaintiff's property, and not the acquisition of property by the defendant b. It lies only for a 3 Bl. Com. 152. 1 Ch. Pl. 146. B. N. P. 32. But if a person has affirmed the acts of another who wrongfully converted his property, he cannot afterwards treat him as a wrong doer, and maintain trover. Per Bayley, J., in Keyworth, It lies only for personal chat tels. It lies for fixtures after a se verance. Trover will lie where trespass cannot be maintained. the conversion of goods or personal chattels. It does not lie for fixtures eo nomine, or for anything annexed to or parcel of the freehold, nor for any injury to real property. But it lies for fixtures which may be removed without injury to the freehold, or which are removable by a tenant ". So it lies for trees, fixtures, or earth, if after a severance from the freehold they have been taken away. If a tenant during his tenancy remove a dung heap, and at the time of so doing dig into and remove virgin soil that is beneath it, the landlord may maintain either trespass de bonis asportatis, or trover, for the removal of the virgin soil d. To sustain this action, the plaintiff must have the right to some specific property; it will not lie for money had and received generally e, but it may be maintained for so many pieces of gold or silver, and in that case the defendant can only redeem himself by tendering to the plaintiff the same specific pieces. It lies for an unstamped agreement, if it can upon payment of a penalty and stamp duty be stamped and rendered available 8. So it lies for a policy of insurance. So, for an undivided part of a chattel, as three-fourths of a ship. So it lies for a lost bank note, if the defendant has wrongfully converted it to his own use, though he has paid part of the proceeds to the plaintiff; but the payment will go in reduction of the damages *. Whenever trespass for taking goods will lie, that is, where they are taken wrongfully, trover will also lie; for one may qualify, but not increase a tort1. But the converse of the proposition does not hold, for trover may often be brought where trespass cannot. As where goods are lent or delivered to another to keep, and he refuses to deliver them on demand, trespass will not lie, but the proper remedy is trovera So where the taking is lawful or excusable, trespass cannot be supported, but the owner must bring trover; as if a sheriff take goods of a bankrupt in execution, after a secret act of bankruptcy but before the commission is sued out, and sells them, trover will lie against him, but not trespass b. The general requisites to maintain this action are, that the plaintiff has an absolute or special property in the subject matter, and actual possession or a right to the immediate possession thereof at the time of the conversion; that the subject matter be a personal chattel, and that the defendant has wrongfully converted it to his own use. SECTION II. ABSOLUTE PROPERTY AND RIGHT OF POSSESSION. out possession, is suf ficient. A party who has an absolute or general property in a Absolute chattel, may maintain trover for it, though he has never had property even withactual possession, for it is a rule of law that the property of personal chattels draws to it the possession. As where A. is indebted to B., and C. to A., and it is agreed between them that C. shall give goods in his possession, which were the goods of A., to B., in satisfaction of A.'s debt; if C. converts them, B. may maintain trover against him; for by the agreement, the right of property was in him, and the conversion is a wrong to him c. So an executor may declare upon the possession of his testator, and of a conversion by the defendant after his death; for the property is vested in the executor, and that draws to it the possession; and even if the general owner has had possession and parted with it, if he has not transferred the right of possession, he may maintain this action; thus, if he has delivered the goods to a carrier or other bailee, and so parted with the actual possession, he may still maintain trover for a conversion by a stranger, for he retains the possession in law, as a 2 Saund. 47. p. b Cooper v. Chitty, 1 Burr. 20. Balme v. Hutton, 9 Bing. 476. 1 C. & M. 262. B. N. P. 35. . 2 Saund. 47. a. d Id. A right of immediate possession must con cur. against a wrong-doer, and the carrier or other bailee is only his servant a. And if a bailee of goods for a particular purpose transfers them to another in contravention of that purpose, the general owner may maintain trover against that person, though he be a bona fide vendee, unless in market overt . And if the owner has parted with the possession of a chattel for a time without a reward, as if he gives a gratuitous perand a right mission to use it, the possession constructively remains in him, he of property has a right to resume it at any time, and therefore may maintain trover against any party guilty of a conversion. But to sustain this action, there must exist a right of possession, as well as a right of property; therefore where a man let a house and furniture for a term, and the furniture was wrongfully taken in execution pending the term; it was held, that the lessor could not maintain trover, because during the term he had parted with the right of possession. So the trustees of an estate pur autre vie cannot maintain trover for trees felled upon the estate, for the tenant for life has a right to the trees when they are cut down. Where a father gave his son some property; it was held, that though the son was under age, the father could not maintain trover against a person who had wrongfully converted that property, because the right of possession was not in him, but in his son f. But where the owner of furniture let it on hire to a married woman who lived apart from her husband, and who was therefore incapable of acquiring a property therein; it was held, that he did not thereby divest himself of the present right of property in such goods, and that he might maintain trover for them 8. When the owner of 12. The owner of stolen property, who has prosecuted the thief a Id. Gordon v. Harper, 7 T. R. Saund. 47. b. Pain v. the Sheriff of Middlesex, R. & M. 99. Benjamin v. the Bank of England, 3 Campb. 417. 2 Saund. 47. b. 5th ed. Wil- Nicholls v. Bastard, 2 C. M. & v. Cross, 2 Campb. 464. d Gordon v. Harper, 7 T. R. 9. 2 |