This last section is a bold experiment, giving as it does to Alberta and the person chiefly injured a right of action against her joint Saskatchetort-feasor. It makes another exception to the rule volenti non, wan. &c. R. S. M. 1902, c. 153 (The Seduction Act). Sect. 3. Practically the same as s. 2, Ontario statute. Manitoba. It is provided that an action for seduction shall be tried by a jury (a), and that it is not in the jurisdiction of a county court (b). C. S. N. B. 1903, c. 111, s. 160 (2), trial by jury preserved in New actions for seduction. Brunswick. ACTION FOR CRIM. CON. (c). See notes to Ch. I., supra, p. 39. DAMAGES IN CASE OF ORDINARY SERVANT (d). The measure of damages in an action for enticement of ser- Ontario. vants is not confined to the loss of services, but the jury may give ample compensation for all damages resulting from the wrongful act (e). DAMAGES IN ACTION FOR SEDUCTION (ƒ). The damages a master can obtain depends very much on the Ontario. position in his household of the person seduced (g). BAD REPUTATION (h). See McMahon v. Skinner (i); McCreary v. Grundy (k), to same Ontario. effect as English cases. (a) R. S. M. 1902, c. 40, s. 59. (d) P. 229, supra. (e) Hewitt v. Ontario Copper Lightning Rod Co., 44 U. C. R. 287. (ƒ) P. 229, supra. See Ross v. Merritt, 3 U. C. R. 60; Fitzhenry v. Murphy, 14 C. L. J. 22; Hope v. Davidson, 33 U. C. R. 550, cases where Court refused (g) Ford v. Gourlay, 42 U. C. R. 552. (4) P. 230, supra. CHAPTER XI. TRESPASS TO CHATTELS AND CONVERSION. Injuries to chattels. Physical damage. Asportation. In dealing with rights of action arising out of injuries done to property movable and tangible in its nature, there are two main things to be considered: first of all, the nature of the wrongful act; secondly, the nature of the right or interest which is infringed by such act. It is clear that he who actually damages a chattel belonging to another, whether indirectly by reason of his negligence, or directly by some act done to the chattel in the nature of a trespass, is guilty of a wrong. Where a cabdriver had deposited his licence with his employer and the latter on discharging him from his service indorsed his reasons for so doing on the licence without any authority, it was held that there was a good cause of action, and that it was no defence to plead the truth of the indorsement (a). There may be a trespass without the infliction of any material damage by a mere taking or asportation. The removal of a chattel from one room to the other without any authority, express or implied from the circumstances (b), may be a good cause of action, although but for nominal damages (c). It is (a) Rogers v. Macnamara, (1853) 14 C. B. 27; see Hurrell v. Ellis, (1845) 2 C. B. 295; Wennhak v. Morgan, (1888) 20 Q. B. D. 635; Norris v. Birch, (1895) 1 Q. B. 639. (b) As where property derelict or endangered is taken with the intention of preserving it for the owner, see per tation no apprehended, however, that for a taking to constitute a trespass When asporit must not merely be an unlawful act but unlawful as against trespass. the party from whom possession is taken. Thus, if goods belong to A., and B. being unlawfully possessed of them transfers them to C., the taking of them by C., though it may give a good cause of action in trover, is not a trespass (a). And it makes no difference, it would seem, if C. is aware of the infirmity of B.'s title. The receiver of stolen goods does not commit a trespass when he takes the goods from the thief with the thief's consent. If it were otherwise every receiver might be indicted for larceny. Formerly if a sheriff seized goods under an execution and it turned out ultimately that the execution debtor had previously committed an act of bankruptcy, and that consequently his assignees in bankruptcy acquired a title by relation to the goods seized in the execution, they might sue the sheriff in trover for the value of the goods, but they could not treat him as a trespasser, because his act was not wrongful as against the debtor from whose possession the goods were taken. But it was different where the original taking was, in every sense, unauthorised, for in such case mere title by relation would enable the party possessing it to maintain an action of trespass. Thus an administrator may sue for an illegal distress made between the death of his intestate and the grant of letters of administration (b). without There may sometimes be an unlawful taking of a chattel Taking although the trespasser has it in his physical custody and control. change of Formerly (c), a bailee could not be indicted for larceny merely possession. because he dishonestly converted to his own use the subject-matter of a bailment. He did not interfere with the possession, and there was consequently no trespass and no larceny. But if he "broke bulk," that is to say, abstracted from the bale, barrel, or parcel, as the case might be, a portion of its contents, he committed a trespass and was indictable for larceny. The most important class of cases to consider is that in which Conversion. the person entitled to the possession of a chattel is permanently (a) See Mennie v. Blake, (1856) 6 E. & B. 842; Winter v. Bancks, (1901) 84 L. T. 504. (b) Tharpe v. Stallwood, (1843) 5 M. & G. 760; explaining Balme v. Hutton, (1833) 9 Bing. 471. (c) Larceny by a bailee was first made an offence by 20 & 21 Vict. c. 54, s. 4, re-enacted by 24 & 25 Vict. c. 96, s. 3. Remedies for deprivation deprived of that possession, and the chattel is converted to the use of some one else. Here the wrong is not done to the thing itself but to the abstract right in the thing. It may of course happen that the one wrong will involve the other. If A. takes the chattel of B. from him he commits an act of trespass, if he takes it and keeps it he is guilty of both trespass and conversion (a). A man may, however, be deprived of his property by many other means than a wrongful taking, as for instance, by a wrongful detention. Apart from trespass, there were at common law three forms of of possession. remedy open to the person who had been tortiously deprived of his goods. He might proceed by trover, detinue or replevin. Trover and conversion. The action of trover, according to the original form of declaration, was applicable only to cases where the plaintiff had lost his goods and they were subsequently found and appropriated by the defendant. However, the averments of loss and finding had long been considered immaterial, and were not traversable by the defendant. Lord Mansfield thus describes the action of trover: "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 into the possession of the goods. The action lies, and has been brought in many cases where in truth the defendant has got the possession lawfully. Where the defendant takes them wrongfully and by trespass, the plaintiff, if he thinks fit to bring this action, waives the trespass and admits the possession to have been lawfully gotten" (b). It will be seen afterwards, however, that the mere unlawful taking may of itself be a good cause of action in trover. By the first Common Law Procedure Act (c) the fictitious averments were abolished, and by the form of declaration given it was simply alleged that" the defendant converted to his own use or wrongfully deprived the plaintiff of the use and possession of the plaintiff's goods" (d). These alternative allegations are in truth (a) See below, pp. 234, 235, Fouldes v. (c) 15 & 16 Vict. c. 76, s. 49. (d) It is said that this alternative allegation was in reality intended as a substitute for the first, and that the two exactly equivalent to one another, and it is the latter that most correctly describes the nature of the action, since the plaintiff sues in respect of the loss of goods which he has suffered, irrespective of any particular appropriation of them which may have been made by the defendant (a). The word conversion, however, is the recognised legal expression for the wrongful deprivation of the possession of goods, and its use in this artificial and fictitious sense has now probably become inveterate (b). An act of conversion may be committed, (1) when property is wrongfully taken, (2) when it is wrongfully parted with, (3) when it is wrongfully sold in market overt although not delivered, (4) when it is wrongfully retained, and (5) when it is wrongfully destroyed. 1. Any one who without authority takes possession of another Conversion man's goods with the intention of asserting some right or dominion by taking. over them is primâ facie guilty of a conversion. It has, however, been said that a person who seeks to acquire some property in a chattel not being aware of the title of the true owner is not guilty of a conversion by the mere fact of taking possession. This question is discussed later on (c). exercise dominion. A mere taking unaccompanied by an intention to exercise per- Intention to manent or temporary dominion may be a trespass, but is no conversion. In Fouldes v. Willoughby (d) the plaintiff had embarked in the defendant's ferry-boat two horses, and had paid for their passage. Subsequently the latter without justification refused to carry out his contract and desired the plaintiff to remove the horses from the boat, which the plaintiff refused to do. The defendant then took them from the plaintiff and turned them loose on the landing-place. At the trial the jury were directed that by so doing he was guilty of a conversion. It was held that this was a misdirection, because the jury ought to have been asked to consider what the intention of the defendant had been, whether he had intended to get rid of the horses from his boat or to assert any right or dominion over them. "It has never yet been held that were printed together by an oversight; see Day, C. L. P. Acts, p. 185. (a) See Keyworth v. Hill, (1820) 3 B. & Ald. 685. (b) See per Bramwell, L.J., Glyn v. East India Dock Co., (1880) 6 Q. B. D. p. 490; Burroughes v. Bayne, (1860) 5 H. & N. p. 309; England v. Cowley, (c) See below, p. 253; and Spackman (d) (1841) 8 M. & W. 540; see also Houghton v. Butler, (1791) 4 T. R. 364. |