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the vendor of an article, upon the sale, warrants it to be good, the law annexes a tacit contract to this warranty, that if it be not so, he shall make compensation to the buyer in an action purely ex contractu (f); whereas should there be * fraud in the transaction, an action on the case would lie to recover

[ * 251 ] damages; ex. gr., if the vendor, knowing the goods to be unsound, used any art to disguise them, he would be answerable. Also, at common law, an action would lie for fraudulently marking iron with a stamp in imitation of the plaintiff's stamp, and selling it under pretence that it was the genuine manufacture of the plaintiff (g). And it has recently been enacted (1) that the vendor of an article bearing a trade mark shall be deemed to warrant that such mark is genuine, and not wrongfully used, unless the contrary be expressed in writing signed by or on behalf of the vendor, and delivered to and accepted by the vendee (i). Further, that where a person sells a chattel bear-ing upon it any indication of its quantity, measure, or weight, or of the place in which it was manufactured, or produced, the sale or contract to sell shall be deemed to have been made with a warranty by the vendor that no such indication was in any material respect untrue, unless the contrary be expressed in manner aforesaid (k).

In cases such as have been specified, the form of remedy appropriate will, in the absence of express legislative intervention, be determined by applying this test: was there an ingredient of fraud and mala fides in the transaction under notice, or is there evidence merely of breach of contract?

* Negligence may be defined to be the omission to do something which a reasonable man, guided by those considerations which ordi

[ * 252 ] narily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do (?). Negligence thus defined when productive of damage to an individual is actionable, and proof of negligence may, as appears from instances adduced in the preceding Chapter, suffice in support of an action founded upon breach of contract. Thus, there is in law an implied contract with a common innkeeper, to secure his guest's goods in his inn; with a common carrier, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common tailor, or other workman, that he performs his business in a workmanlike manner; in which, if he fail, an action lies to recover damages for such breach of undertaking. And when a skilled labourer or artist is employed to do work, there is on his part an implied warranty that he has skill and is reasonably competent for the task which he assumes to perform. The public profession of an art is a representation and undertaking to all that the professor possesses the requisite ability and skill. There is here

(f) A general warranty may not, however, matter of skill, it has been held that an action extend to guard against a defect that is lies to recover damages for this imposition; plainly and obviously the object of one's Salk. 211. senses, as if a horse be warranted perfect, (9) Crawshay v. Thompson, 4 C. B. 357. and wants either a tail or an ear, unless the (h) 25 & 26 Vict. c. 88. buyer in this case be blind. But if cloth is (i) Sect. 19. warranted to be of such a length, when it is (k) Sect. 20. not, there an action et contractu lies for dam- A person aggrieved by the forging or coun. ages; for that cannot be discerned by sight, terfeiting of a trade mark may recover dainbut only by a collateral proof, the measuring ages against the guilty party (s. 22), and a it. And if a horse is warranted sound, and conviction for any offence under the statute he wants the sight of on eye, though this will not affect the civil remedy (s. 11). seems to be the object of one's senses, yet as (1) Blyth v. Birmingham Waterworks Co., the discernment of such defect is frequently 11 Ex. 781, 4.

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an implied contract to that effect, whereas a person not thus holding himself out as an expert would incur liability for want of reasonable skill, only in virtue of an express contract that he possessed or would exercise it (m).

Negligence, indeed, is comprised within the more general expression breach of duty, in reference to which it is established that where the law casts any duty upon a person which he refuses or fails to perform, he is answerable in an action to one whom his refusal or failure damages, for one who undertakes any office, employment, trust, or duty, contracts with those who employ or trust [ * 253 ]

him, to * perform it with integrity, diligence, and skill (n). And, if

by his want of either of those qualities any damage accrues to an individual, such person has in general a remedy by action. A few instances will illustrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feasance or of mis-feasance; as, if the sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereto; in both these cases the party aggrieved may have an action against the sheriff for damages to be assessed by a jury (0). So negligence or breach of duty may, in accordance with the above principle, be imputed to the trustees of works to the use of which the public on payment of tolls or otherwise are entitled, as well if such trustees wilfully omit to avail themselves of means of knowledge respecting the condition of the works which they have in charge as if the actual existence of such knowledge be brought home to them, and for damage resulting from their neglect of duty, where established, they will in either case be liable (p).

Circumstances evidencing negligence or breach of duty may be infinitely various (7), sometimes giving rise indifferently to an action of contract or of tort, and sometimes to an action ex delicto only. With a view therefore to exemplifying the differences between breach of contract and negligence or [ * 254]

breach of duty, the following state * of facts may be suggested. A. is

the owner of a house, a portion of which is ruinous, and threatens to fall upon the contiguous building of C. A. being aware of this, demises the house to B., without himself repairing the dilapidation or requiring B. the tenant to repair it, but suffering it to continue as before. A., under such circumstances, will be liable to C. for damage caused to his premises by reason of A.'s building falling upon them (r), for A. was guilty of wrongful non-repair, which caused damage, and the fall of the building did not arise from an act of the lessee, but happened in obedience merely to the laws of nature. In a case of this sort there is no contract between A. and C., but there is a breach of duty owing by A. to C., and for the damage thence resulting, an action ex delicto is held to be maintainable by our law. Again, A. is the owner of premises bounded by a wall which he suffers to remain in a ruinous and dangerous condition. B., lawfully passing along a highway contiguous to the said wall, sustains hurt by its falling upon him. B. will have a right of action against

(m) Harmer v. Cornelius, 5 C. B. N. S. 236. resp., 18 C. B. N. S. 722; for omitting to fence

(n) Ferguson v. Earl of Kinnoull, 9 Cl. & a dangerous shaft, Williams v. Groucott, 4 B. F. 251.

& S. 149; for allowing sparks to escape from (0) See Ilooper v. Lane, 6 H. L. Cas. 443. a locomotive engine, and so damaging a hay. (P) Mersey Docks v. Gibbs, Mersey Docks v. stack, Jones v. Festiniog R. C., L. R. 3 Q. B. Penhallow, L. R. 1 H. L. Cas. 93.

733; and for causing explosions on adjoining (q) For instance, an action has been held land to frighten away the plaintiff's game, to lie for omitting to repair fences, whereby Ibottson v. Peat, 3 H. & C. 644. plaintift's horse strayed on to defendant's land, (r) Todd v. Flight, 9 C. B. N. S. 377. and was there damaged, Lee, app., v. Riley,

A. to recover damages compensatory for the hurt which has been done him (8). Under these circumstances there is to be found no semblance of a coutract, nor any connection or privity between A. and B.; the right of action contains in truth exclusively these elements - a general breach of duty on the part

of A., and damage suffered by B. in consequence of such breach of duty. (559)

We will in the next place enumerate and briefly consider the wrongs that may be done to personal property as well by unlawfully taking, detaining, or converting it, as by injuring or causing consequential damage to it.

The right of property in external things being originally acquired by occupancy, and preserved and transferred by grants, deeds, and wills, in continuation of that occupancy; it follows as a necessary consequence, that

when * I once have gained a rightful possession of any Unlawful taking.

[ * 255 ] goods or chattels, either by a just occupancy or by a legal transfer, whoever by force dispossesses me of them, is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasion: and, if an acquisition of goods by force were allowed to be a sufficient title, all property would soon be

a confined to the most strong, or the most cunning; and the weak and simpleminded part of mankind (which is by far the most numerous division) could never be secure of their possessions.

The wrongful taking of goods being thus clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is by an action of trespass, technically described as de bonis asportatis, wherein the plaintiff may recover, not the thing itself, but only damages for the loss of it (t). (560)

Detinue and replevin (which, being somewhat anomalous in its nature, will be separately treated of at the end of this Chapter) are the only actions in which

the specific possession of personal chattels is restored to the detainer. proper owner.

For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that lex neminem cogit ad vana, seu impossibilia,” our law there


(8) Duckworth v. Johnson, 4 H. & N. 655.

(1) As to a taking of goods animo furandi, post, vol. iv,

Rice v.

(559) For an injury occasioned by want of due care and skill, in doing what one has prom. ised to do, an action may be maintained against him in favor of the party relying on such promise, and injured by the breach of it, although there was no consideration for the promise. Gill v. Middleton, 105 Mass. 477 ; S. C., 7 Am. Rep. 548.

There is no absolute rule as to what constitutes negligence; and it is held a mixed ques. tion of law and fact, to be settled by a jury under the instructions of the court. Montpelier, 19 Vt. 470; Norris v. Litchfield, 35 N. H. 271; Philadelphia, etc., v. Spearen, 47 Penn. St. 300; McCully v. Clarke, 40 id. 399; Foot v. Wismall, 14 Johns. 304.

(560) To maintain trespass de bonis asportatis the taking need not have been with actual force (Gibbs v. Chase, 10 Mass. 130); nor is proof of malice necessary to sustain the action, Whitewater Valley Canal Co., etc., v. Don, 1 Smith (Ind.), 62. But the possession of the chattel, actual or constructive, must be in the plaintiff at the time of the taking, or trespass will not lie. See Putnam v. Wyley, 8 Johns. 432; Filler v. Shotwell, 7 Watts & Serg. (Penn.) 14; Super v. Sumner, 5 Vt. 274; M Carty v. Vickery, 12 vohns. 348.

fore contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages.

Detinue lies for the illegal detention of another's goods, whether the original [ * 256]

taking of them was lawful or * otherwise. As if I lend a man a

horse, and he afterwards refuses to restore it, this injury consists in the detaining, not in the original taking, and the regular method for me to recover possession is by action of detinue (u); in which action it is necessary to ascertain the thing detained, so that it may be specifically known and recovered. Therefore detinue cannot be brought for money, corn, or the like; for that cannot be known from other money or corn; unless it be in a bag or a sack, for then it may be distinguishably marked. In order therefore to ground an action of detinue, which is only for the detaining, these points are necessary (v): 1. That the defendant has got into possession of and wrongfully detains the plaintiff's goods; 2. That the plaintiff had at the time of commencing the action a right to the immediate possession of them; 3. That the plaintiff had a property in them (x); and, 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the respective values of the several parcels detained, and also damages for the detention. And the judgment is conditional; that the plaintiff recover the said goods, or (if they cannot be had) their respective values, and also damages for detaining them (y). (561)

A peculiar power, ancillary to the remedy by detinue, has recently been conferred upon a court of common law, the power of compelling restitution of a chattel which has been unlawfully detained-by distress, “ till the defendant render such chattel,” or the power at the option of the plaintiff of “causing to be made of the defendant's goods the assessed value of such chattel” (z).

The action of trover or conversion originally lay for recovery of damages against such person as had found another's goods, and refused to deliver them

on demand, * but converted them to his own use; from [ * 257]

which finding and converting it was called an action of trover and conversion. By a fiction of law, however, an action of trover was (u) F. N. B. 138.

(y) Co. Entr. 170; Chitt. Forms, 9th ed. 255. (v) Bull. & L. Pl., 2nd ed. 271.

(2) 17 & 18 Vict. c. 125, 8. 78. See 19 & 20 (c) See Oliver v. Oliver, 11 C. B. N. S. 139. Vict. c. 97, s. 2.


(561) Detinue lies in every case in which the owner wishes to recover the specific property, whether it came into the possession of the defendant rightfully or wrongfully. Oberfield v. Bullitt, 1 Mo. 749; Peirce v. Hill, 9 Port. (Ala.) 151 ; Bernard v. Herbert, 3 Cranch’s C. C. 346 ; Dame v. Dame, 43 N. H. 37. The gist of the action is the wrongful detention of property (id.); and it cannot, therefore, be maintained where the holding over was permissive, so long as that kind of possession continues. Benje v. Creagh, 21 Ala. 151. Nor can it be maintained after the destruction or death of the chattel sued for. Caldwell v. Fenwick, 2 Dana (Ky.), 332; Lindsey v. Perry, 1 Ala. 203.

To support the action the plaintiff must have a property, either general or special, in the chattel; if special it must grow out of an actual possession, or be coupled with an interest therein. Ramsay v. Bancroft, 2 Mo. 151. See Boyle v. Townes, 9 Leigh (Va.), 158; Wade v. Edwards, Cam. & N. (N. C.) 416; Bell v. Hogan, 1 Stew. (Ala.) 536; Frierson v. Frierson, 21 id. 549; Berry v. Hale, 2 Miss. (1 How.) 315. Demand before suit is necessary only for the purpose of entitling the plaintiff to damages for detention between the time of the demand and the commencement of the suit. Jones v. Henry, 3 Litt. (Ky.) 46; Tunstal v. M'Clelland, 1 Bibb (Ky.), 186; Camaway v. M'Neice, Walk. (Mich.) 638; Jones v. Green, 4 Dev. & B. (N. C.) 354 ; O'Neil v. Henderson, 15 Ark. 235.

at length permitted to be brought against any man who had in his possession by any means the personal goods of another, and wrongfully sold or used them without the consent of the owner, or asserted dominion over them or refused to deliver them when demanded. And although the fact of a finding became immaterial, the plaintiff still suggested in his declaration that he had lost such goods, and that the defendant found them: a form which has been simplified by the first Common Law Procedure Act, s. 49, which enjoins that “the statement of losing and finding and bailment in actions for goods or their value” be omitted. The declaration in trover accordingly now alleges that “ the defendant converted to his own use, or wrongfully deprived the plaintiff of the use and possession" of his goods. To support this action the plaintiff must show a right of possession (a), and a right of property; he must also give proof of a conversion (6) by the defendant. Any man may take the goods of another into possession if he finds them; but no finder is allowed thus to acquire a property therein as against the absolute owner, and therefore he must not convert them to his own use, which the law presumes him to do if he refuses to restore them to the owner: for which reason such refusal alone is primâ facie evidence of a conversion (c). A conversion being proved, the plaintiff * may in this action recover damages equal to the value of the

[ * 258 ] thing converted. (562)

(a) See Meyerstein v. Barber, L. R. 2 C. P. keep it as against all save the rightful owner; 661.

and consequently it was there held that the (6) As to the meaning of conversion, see finder might maintain trover for the jewel. Burroughes v. Bayne, 5 H. & N. 296 ; Pillott In this case the evidence showed clearly that v. Wilkinson, 3 H. & C. 345.

there had been a misappropriation of the (c) Armory v. Delamirie, 1 Stra. 504, shows jewel, and from it we gather that a special that the finder of a jewel, though he does not property in goods will, as against a wrongby such finding acquire in it an absolute in. doer, entitle the person having it to maintain defeasible property or ownership, has yet trover. See also Bridges v. Hawkesworth, 21 such a property in it as will entitle him to L. J. Q. B. 75.

(562) In trover the cause of action accrues upon the conversion. It is the conversion which is the gist of the action. Kelsey v. Griswold, 6 Barb. 436. The action being founded on a conjunct right of property and possession, any act which denies or is inconsistent with such right is a conversion. Bristol v. Burt, 7 Johns. 254. See Webber v. Davis, 44 Me. 147; Brown v. Beason, 24 Ala. 436 ; Robinson v. Skipworth, 23 Ind. 311 ; Stickney v. Smith, 5 Minn. 486; Woodbury v. Long, 8 Pick. (Mass.) 543; Hotchkiss v. Hunt, 49 Me. 213. So, if one legally in possession of the personal property of another misuse that property, it is a conversion, and the owner may immediately maintain trover. Ripley v. Dolbier, 6 Shep. (Me.) 382. See Maguyer v. Hawthorn, 2 Harr. (Del.) 71 ; Chapin v. Siger, 4 McLean, 378.

Where one induces another to enter into a contract and part with his property, either by duress of imprisonment, or duress per minas, the transaction is void, and no title passes; and a party who assumes the control of property, obtained by him in this way, is liable to the owner in trover without any previous demand. Foshay v. Ferguson, 5 Hill, 154. So, fraud in obtaining goods is held to dispense with a demand and refusal. Tallman v. Turck, 26 Barb. 167 ; Luckey v. Roberts, 25 Conn. 486. And it is only when the wrong-doer became, in the first instance, lawfully possessed of the goods, and there is no proof of an actual distinct conversion, that a demand and refusal are necessary as evidence of a conversion. Kelsey v. Griswold, 6 Barb. 436. See Witherspoon v. Blewlett, 47 Miss. 570; Munger v. Hess, 28 id. 75; Boyle v. Roche, 2 E. D. Smith, 335; Fardy v. Wheeler, 56 Ill. 152.

If one has it within his power to deliver or to retain the article demanded, a demand and a refusal to deliver are held to constitute sufficient evidence of a conversion, Bristol v. Burt, 7 Johns. 254; Kelsey v. Griswold, 6 Barb. 436. A refusal may, however, be accompanied with such reasonable qualification as to furnish an excuse for retention, and then there is no conversion shown merely by proof of demand and refusal. McEntee v. N. J. Steambort Co., 45 N. Y. (6 Hand) 34; McCormick v. Penn. Central R. R. Co., 49 N. Y.(4 Sick.) 303, 310. See Magee v. Scott, 9 Cush. (Mass.) 148; Dietus v. Fuss, 8 Md. 148.

VOL. II. 26

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