text:
    GLAZE VS. M'MILLION.
    t. To mni’-t.vn the action of Trover, there nm't be property in the plaint.ff, and a conversion, by the defendant.
    2. And, it seems, that conversion, may arise either, from a wrong-fnJ taking; by an illegal assumption of ownership; by an illegal ■use or misuse; or by a wrongful detention.

    3. And in the ’asteas", a’one, where the conven ion arises from a mere wrongful detention, — is proof of a demand and refnsa', necessary.
    4.Therefore, where, in such action, there is no proof that possession of the chattel was obtained mi1 awfully, evidence of a demand and refusal are esseuha. to authorise a recovery.
    5.For, semble, the liare possession of a chattel, will not be presumed to be tortious.
    Error to the Circuit court of Tustcaloosa county.
    Trover. Plaintiff below declared against defendant Glaze, and one West, in trover, for a gold watch; to which defendants plead separately, the general issue. The jury found defendant Glaze, guilty of the trover and conversion; but found favorably in reference to West.
    The bill of exceptions stated, that on tlie trial, the right to the watch, in controversy, was shewn to have been in the plaintiff some considerable time before action brought. It was also shewn that defendant Glaze was in possession of the watch a short time before action brought, but was not heard to claim the same, or exercise any right of ownership over it, except the having it in possession, at which time he informed the witness, that it was the watch claimed by plaintiff. It was in evidence, that about the time Glaze was in possession of the watch, plaintiff had commenced a prosecution against one M, for stealing the watch; but it was not shewn whether the prosecution had terminated or not. It was shewn that the watch seen in Glaze’s possession was the same which M. was charged with stealing. There was no proof of a demand by plaintiff, of the watch, from defendant Glaze, nor any other evidence of a conversion thereof by him. Upon which state of the case, defendant Glaze, moved the court to instruct the jury, that if they should believe there had been no demand of the watch from Glaze by plaintiff, or his agent, and refusal by Glaze to deliver it, before the commencement of the suit, they should find for the plaintiff which charge the court refused to give; but charged the jury that under the circumstances of this case, there was no necessity of a demand and refusal to entitle the plaintiff to recover, if they should find the property to be the property of the plaintiff.
    The plaintiff in error here assigned, that there was error:
    1. In the rendition of the judgment below; and
    2. That the court erred in refusing the instruction asked, and in giving the instruction which it gave to the jury, as shewn by the bill of exceptions.

      Crobb & Capers, for the plaintiff in error.

      Ellis & Peck, contra.
   GOLDTHWAITE, J.

— The evidence before the jury, when this cause was tried, may be considered as establishing, that the plaintiff below, was the owner of the watch said to have been converted. That it was in the possession of the plaintiff in error, a short time before the institution of the action, and had been stolen from the defendant in error, by one Merritt. No claim of property was asserted by the plaintiff in error, to the watch, 'and no acts of ownership were proved against him, and all inference as to the existence of the one or the other, is expressly negatived by the bill of exceptions. On this evidence, the Circuit court instructed the jury, that under these circumstances, the plaintiff below was entitled to recover, if they should believe the watch was his property, and that proof of a demand and refusal was unnecessary.

To maintain the action of Trover, there must be property in the plaintiff, and a conversion by the defendant. In this case, the property is admitted to be the plaintiff’s, but the conversion is denied. It therefore becomes necessary to ascertain what is evidence of a conversion, and whether any facts were before the jury, from which it could be properly inferred.

It is believed that all conversions may be divided into four distinct classes.

1. By & wrongful taking;

2. By an illegal assumption of ownership;

3. By an illegal user or misuser; and

4. By a wrongful detention — Bull. N. P. 44; 2 Saund. 47, E.

In the three first named classes, there is no necessity for a demand and refusal, as the evidence arising from the acts of the defendant, is sufficient to prove the conversion. In the latter class alone, is such evidence to he required, as the mere detention of a chattel furnishes no evidence of a disposition to convert it to the holder’s use, or to divest the true owner of his property.

If the position assumed by the defendant’s counsel, is correct, another class of conversions must be created; as it is certain that the case supposed of property stolen, and coming into the hands of an innocent person, does not fall within either of the classes we have named.

Let us, however, test the principle, which is asserted —that every one who comes into the possession of property of which the owner is illegally dispossessed, is guilty of a conversion, and liable to an action of trover, without demand, and consequently, without notice.

It is admitted, that an innocent finder of property is not liable to this action, unless he assumes to be the owner, illegally uses or misuses, or detains the property after demand by the owner; and yet if the property has been stolen, or illegally acquired by a wrongful taker, it may, notwithstanding, come to the possession of another, without any fault; and if so, he cannot stand in a less favorable light than a finder.

The evidence does not disclose how the plaintiff in error obtained possession : for any thing which appears, he may have received it from the thief, or have found it. Be his possession of what character it may, he cannot be charged with the unlawful detainer, until some fault is put on him by evidence. The law will not presume him to be a tortfeaser without proof, and the bill of exceptions shews a complete want of any evidence to charge him.

The instructions given to the jury were erroneous, and for this cause the judgment must be reversed, and the cause remanded.

We have not adverted to the other position, because, if costs are improperly taxed against a defendant, he can review it in another manner; but he has no right to complain of an error which can in no way affect him, even if the discharge of a co-defendant, without giving him costs, can be so considered.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    BLACKBURN VS BAKER, et al.
    1. In an action on the statute, plaintiff, by the statement of the cause in his declaration, must bring himself within the act, by setting forth every circumstance material to a proper description of the offence ; and in such cases debt will lie, and is proper, if no specific remedy is provided.
    2. The actual occupancy of the one half of a quarter section of land, does not draw to its occupant, the possession of an adjoining quarter section of unimproved and unoccupied land, over which he has exercised acts of ownership, by cutting logs for his saw-mill, so as to authorise him to maintain trespass quare clausum fregit, against one who had also cut logs thereon for his mill, and who was in thej occupancy of land as near it as that occupiedby plaintiff.
    3. It appeal's, that constructive possession,Pas contradistinguish-ed from actual possession, never exists ill the absence of title.
    4. In trespass quare clausum fregit, it is competent for the jury to acquit one defendant, and find the other guilty, and assess damages against him.
    Error to the Circuit court of Tuskaloosa county.
    Trespass quare clausum, against B. and J. Blackburn. To the declaration of plaintiffs, the defendants plead not guilty, and license given by plaintiffs. Verdict and judgment in favor of one defendant, and against another.
    The bill of exceptions stated, that on the trial of the cause, plaintiffs produced no paper evidence of title to the lands in question, but relied on possession only. — • The plaintiffs proved, they were in possession of a certain half quarter section of land, living thereon, and had a saw mill on the same: that the trespass complained of was committed on a quarrer section of land, adjoining the said half quarter, which was altogether wood-land, on which it was not proved that the plaintiffs had made any improvement, whatever — neither buildings, cultivation or fence. The trespass proved against defendent, (B. B.) was that he had cut and hauled off from the said quarter section about thirty-six saw-logs, which were hauled to his mill: that ¡¿the defendant, (J. B.) was not concerned in said alleged trespass. That the tresspasspro-ved against the defendant,JJ. B.) was cutting and hauling from said quarter section, about thirty-six saw-logs, which were hauled to his mill — and 'that defendant, (B. B.) was not concerned in said supposed trespass. It was proved, however, that both trespasses, were committed about the same time; — that the logs hauled to the mill of the defendant J. B., were hauled on the carry-log of defendant, B. B.
    It was also proved, that plaintiffs exercised] acts of ownership over said quarter section, by cutting and hauling logs off said land. That both alleged trespasses were about three ¡quarters of a mile from plaintiff’s mill, and about the same distance from the mills of defendants.- and that defendant, B. B., lived about half a mile from the place of the supposed trespasses. That after the supposed trespasses, the plaintiffs had had a survey made, which embraced the land on which the supposed trespasses were committed. On these facts, the defendants’ counsel moved the court to instruct the jury as follows:
    1. That, unless the plaintiffs had some improvement on the quarter secfon, upon which the trespasses are said to have been committed, or unless the same was enclosed by a fence, the plaintiffs having shewn no title, they should find for the defendants.
    2. That unless the jury believed, from the evidence, that the defendants were joint-trespassers, they should find for the defendants.
    3. That if they believed, from the evidence, that the trespass proved against the defendant, J. B., was for cutting and hauling logs to his mill, in which the defendant, B. B., had no interest, and in which he took no part; and if the trespass proved against the defendant, B. B., was for cutting and hauling logs to his mill, in which defendant, I. B., had no interest, and in which he took no part — that then the trespasses were separate, and not joint, and they should find for the defendants: which charges the court refused to give ;■ but charged the jury, that the plaintiffs must either shew titles in themselves, or actual possession. That to constitute actual possession, it was not necessary that the lands be enclosed with a fence, as contended for by defendants.— A man occupying a farm, and exercising acts of ownership over the adjacent woodland, as a part and parcel of the same tract of land, and attached to the same plantation, was a sufficient possession in law to authorize recovery.
    4. That to authorise a recovery against defendants, the jury must believe, from the testimony, that they were jointly concerned in the trespasses, — that it was not sufficient that one defendant committed a trespass at one time, and the other at a different time. In the action of trespass against several defendants, they might find any portion guilty, and the balance not guilty, according to the proof, <fcc.
    At the request of the plaintiffs, the court charged the jury, they might, under the ee.oud section of the act, title i£ trespass,” Aik. Dig. 42(5, find three dollars for every tree cut, carried away or destroyed, ¿ce.
    To the refusal of the court to charge as requested, and to the charges given, the defendants excepted, &c.
    And at the present term the plaintiff in error assigned:—
    1. That the court erred, in refusing to give the several charges to tiie jury, as requested by the defendant below, as stated in the bill of exceptions.
    2. The court erred in the several charges given to the jury, as stated and set forth in the bill of exceptions.

      Ellis & Peck, for the plaintiffs in error.

      Crabb, contra.
   COLLIER, C. J.

— -Three questions arise upon the bill of exceptions in this case.

1. Does the actual occupancy of the half of a quarter section of land, draw to its occupant the possession of an adjoining quarter section of unimproved and unoccupied land, over which he had exercised ownership by cutting logs for his saw mill, so as to authorise him to maintain trespass guare clausum fregit, against one who had also cut logs thereon for his mill, and who was in the occupancy of land as near it as that occupied by the defendants in error ?

2. Is a plaintiff entitled to recover tiie statute assessment of the value of trees in an action for a trespass upon land, in the usual form?

3. In such an action, can the jury find one defendant not guilty, and the other guilty, where a joint trespass is charged against two ?

1. It was not insisted for the defendants in error, that they were entitled to recover by force of a constructive possession, nor could such an argument be maintained; for such a possession, as contra-distinguished from one that is actual, never exists in the absence of title. And with this it is not pretended that the defendants are invested-Gillespie vs Dew. (1 Stew. R. 229.)

So far as the evidence on this point (as disclosed in the bill of exceptions) shows any thing, it is about as strong to prove an actual possession in the plaintiff in error, as in the defendants. But, in our opinion, it falls short of shewing either party to have been thus possessed. This case does not make it necessary to define, with particularity, what is necessary to constitute actual possession — and we will therefore leave that question open, to be decided when it shall directly arise. We will remark, however, that the occupancy of eighty acres of land, cannot draw to its occupant the adjoining eighty acres, though unoccupied, and a part of the same quarter section. Otherwise, we must suppose not only that an appropriation, by metes and bounds, or an enclosure, was not necessary, but that he who acquires one sub-division of land, has also become the purchaser of another sub-division contiguous — which would extend the doctrine of presumption, quite too far—Jackson vs Shoemaker, (2 Johns. R. 234;) Jackson vs Woodruff, (1 Cowen, 276, 285;) Ibid. 605.

2. The judge of the Circuit court instructed the jury, ‘‘ that if they found the defendants guilty, they might, under the second section of the act, title “ Trespass,” (Aik. Dig. pp. 426,) find three dollars for every tree cut, carried away, or destroyed,” &c. The words of the section referred to, are as follows: “ If any person shall cut down, carry away, or destroy any cypress, white oak, black walnut, pecan or cherry tree, upon any lands uot his own, without first having the consent of the owner, he shall forfeit and pay the owner thereof, tea dollars for every such tree, so cut, carried away, or destroyed ; and for every other tree so cut, carried away or destroyed, without, leave as aforesaid, the sum of three dollars, except such trees as may be cut or taken out of, or for the use of public roads.” The trees cut and carried away by the plaintiff were pine trees, and of course estimated at the smallest sum.

It is a settled rule, that in actions on statutes, the plaintiff, by the statement of the cause in his declaration, must bring himself within the act, by setting forth every circumstance material to a proper description of the offence—Ellis vs Hull, (2 Aik. R. 41;) (1 Cowen, 176;) (6 Cowen, 290.) A declaration on the statute should aver that the plaintiff was the owner of the land —state the number of trees cut, &c. and their description — that they were cut, &c. without his consent, &e. In the case before us, the declaration is defective, perhaps, in almost every essential — so much so, that it is clear that it was not framed with a view to the statute.

Again — The form of the action is not adapted to the recovery of the penalty assessed by the statute. Whenever a statute gives a right to recover damages, which are ascertained by the act itself, an action of debt lies and is proper, if no specific remedy is provided—Bigelow vs the Cambridge and Concord T. A. (7 Mass. R. 202;) United States vs Allen, (4 Day’s cases, 474;) (1 Chitty’s Pl. 104;) (2 Bacon’s Ab. 280.) The charge of the jury is, then, erroneous — they should have been instructed— if the defendants in error entitled themselves to a recovery, to give damages proportioned to the injury done, without regard to the value affixed to the trees by the statute.

3. In regard to the last point, the charge of the Circuit court is correct. It is competent for a jury, in this form of action, to acquit one defendant and find the other guilty, and assess damages against him.

The judgment is reversed, and the cause remanded.