(G) Of Evidence in an Action of Trover. Under the general issue in trover, evidence of lien is inadmissible. White v. Teale, 4 Perr. & D. 43.g {A demand of payment or satisfaction generally for the goods is sufficient. 1 Johns. Ca. 406, La Place v. Aupoix; 1 Esp. Rep. 31, Thompson v. Shirley and Body. A demand in writing left at the defendant's house was ruled by Lord Kenyon to be sufficient. 1 Esp. Rep. 22, Logan v. Houlditch.} In an action of trover by an administrator, he declared for the finding and conversion of the rum of his intestate. The evidence was, that the rum was taken by the defendant during the life of the intestate; but that it was not made use of by the defendant until the intestate was dead. This evidence was holden to be sufficient to maintain the action: and by the court-As the plaintiff was ignorant of the time of using the rum, the defendant ought, if he would avail himself thereof, to have disclosed this in his plea; but if he had done it, the evidence of his taking the rum during the life of the intestate and keeping it until his death would have been sufficient to maintain the action. Stra. 60, Crosier v. Ogilby; ||2 Saund. 47, n., (5th edit.)|| [In an action of trover for rushes, the plaintiff proved that he was an inhabitant of T, and there was a custom for every one inhabitant there to cut and take rushes on the place in question; that he (by his servant) having cut down five or six loads of rushes, the defendants took and carried them away. The defendants called no witness. By the court-This is such evidence of property in the plaintiff, and conversion in the defendants, that they appear to be wrongdoers; for they have neither by evidence nor pleading shown any right or title to these rushes, and appear to us to be mere strangers. Rackham v. Jesup, 3 Wils. 332.] Vide 2 Taunt. 302.|| Every thing, which tends to prove that the defendant has not been guilty of a conversion, may be given in evidence in an action of trover upon the general issue. [Vide Bull. N. P. 48.] A carrier who is defendant in an action of trover, may give in evidence upon the general issue, that he refused to deliver the goods because the money due for the carriage of them had not at the time of a demand been paid or tendered; for unless this money were paid or tendered before the demand was made, he has not been guilty of a conversion. And without mentioning any other instance of the like kind it may in the general be observed, that wherever the defendant in an action of trover had a right at the time of a demand to detain the chattel, he may give this right in evidence upon the general issue; because the defendant has not in any such case been guilty of a conversion. Salk. 654, Hertford v. Jones. Ante, Trover, (B).|| If one joint-owner of a chattel bring an action of trover against another joint-owner, the defendant may give in evidence upon the general issue, that he is joint-owner with the plaintiff; because this, which shows a right in him to the possession of the chattel, does at the same time show that he has not been guilty of a conversion, unless in case of destruction, or what (G) Of Evidence in an Action of Trover. is tantamount to it; but if one joint-owner of a chattel bring an action of trover against a stranger, the defendant cannot give in evidence upon the general issue, that J S is joint-owner with the plaintiff.(a) Salk. 290, Brown v. Hodges; [Cowp. 450, S. C. cited.] (a) It must be pleaded in abatement. 1 Saund. 291, (K), and cases there collected; but see Nathan v. Buck. land, 2 Moo. 153.||| If the money for which J S after converting the chattel of J N sold it, have been recovered by J N in an action of assumpsit, and J N afterwards bring an action of trover for the conversion of the same chattel, the judg ment in the action of assumpsit may be given in evidence in the action of trover upon the general issue; because, as it appears from this judgment, that the plaintiff has recovered the value of the chattel, it does likewise appear, that he has no property therein; and, consequently, that the defendant has not been guilty of a conversion. Ld. Raym. 1217, Lamine v. Dorrel. [In some cases it is allowed in this action to bring the thing into court for which the action is brought. But herein this distinction is to be ob served: if trover is brought for a specific chattel of an ascertained quantity and quality, and unattended with any circumstances that may enhance the damages beyond the real value, but that its real and ascertained value must be the sole measure of the damages, then the specific thing demanded may be brought into court. But where there is an uncertainty, either as to the quantity or quality of the thing demanded, or there is any tort accompanying it that may enhance the damage above the real value of the thing, and there is no rule whereby to estimate the additional value, there it shall not be brought into court. 3 Burr. 1364. In trover for a bond, though the case seemed a very favourable one for the defendant, the court said they could stay the proceedings upon the delivery up of the bond, as the plaintiff insisted upon going for special damages. Whittend v. Fuller, 2 Bl. R. 902. Where goods are cumbrous, the court will grant a rule to show cause why, on the delivery of the goods to the plaintiff, and paying costs, proceedings should not be stayed. Cook v. Holgate, C. B., Tr. 10 G. 2; Watts v. Phipps, B. R., East. 7 G. 3, Bull. N. P. 49.] In trover for a packet of letters, the defendant was allowed to stay proceedings as to one of them, on delivering it up, and paying costs. Earle v. Holderness, 4 Bing. 462; and see 7 Term R. 53; Tidd's Prac. 571; 6 Bing. 408. But where the value of the goods is unascertainable, the court will not stay proceedings on delivery of the goods to the plaintiff, or payment value of them. Tucker v. Wright, 3 Bing. 601; and see Makinson v. Rawlinson, 9 Price R. 460. Where the plaintiff in his declaration described the note which was the subject of an action of trover as being for $180, and the note proved to be in possession of the defendant was for $300, the variance was holden to be fatal. Bissel v. Drake, 19 Johns. 66.g (H) Of the Verdict, Damages, and Judgment in an Action of Trover. A JURY cannot give penal damages in trover, though there be a condition annexed to the verdict that the damages shall be released on the delivery of the specific property. M'Dowell v. Murdock, 1 Nott & M'C. 237. See Norris v. Beckley, 2 Rep. Const. Ct. 228. In trover, the value of the property at the time of the demand, with interest, or other compensation, is the measure of damages; consequential damages are not recoverable. Buford v. Fannen, 1 Bay, 273. If the damages recovered by judgment, in an action of trover for the conversion of personal property, be paid by the defendant, the property having been retained by the defendant, his title to it has relation back to the conversion, and the property thus becomes his own. Hepburn v. Sewell, 5 Har. & J. 211; Osterhout v. Roberts, 8 Cowen, 43; 7 Cowen, 95; 8 Wend. 505. The measure of damages is the value of the property at the time of the conversion, with interest from that time. Dillenback v. Jerome, 7 Cowen, 294. In trover the plaintiff is entitled to recover for the injury done to his goods as well as for their value. Jamison v. Hendricks, 2 Blackf. 96. A creditor of the husband having taken trust property of the wife by execution and sold it at the post, the husband bid it off for the trustees, paying less for it than its value; trover was brought by the trustees against the creditor, and held that proof of this fact was admissible in mitigation of damages; the real damages sustained, which was the sum paid at the post for the restoration of the property, being the rule of damages in the case. Baldwin v. Porter, 12 Conn. 473. In trover for goods, the defendant pleaded payment of money into court, and the plaintiff replied that he had sustained more damages: the defendant paid into court the cost price of the goods, having offered the goods in specie to the plaintiff two days after they ought to have been delivered. The plaintiff proved that he had sustained inconvenience and loss by not having the goods delivered in proper time. The jury found for the defendant, and the court refused to set aside the verdict. Evans v. Lewis, 3 Dowl. P. C. 819.g VOL. IX.-86 fornication, 41. adultery, 42. regrating, 42. vagrancy, 44. contagious distemper, 45, a trustee, 45. a tradesman, 48. a clergyman, 48. a physician, 48. an attorney, 50. Acts of congress, how passed, 213, 214. Adhering to the king's enemies, treason, 398. Adjective words, how construed, 78. Affirmative, to be actionable, how far words must be, 69. Alia enormia, what may be given in evidence under, 505. may be guilty of treason, when, 382. Allodarii, who are, 362. Amends, effect of tender of, 361. Ancient statutes, what, 213. Animals feræ naturæ, trover does not lie for, 650. Antiqua custuma, what, 111, 118. Apprentice, trover does not lie for an, 649. Arrest by private person, effect of, 464, 468, 469. at request of bailiff, 465. on Sunday, effect of, 467. a peace-officer may make an, 470. soldiers are free from, 166. Articles of war, English, 164. Assumpsit, when money can be tendered in an action of, 351. Attorney, what is slander of an, 50. when a new trial will be granted for the neglect or mistake of an, 610. Averment, when required in slander, 88. effect of in slander, 73. BAILEE may maintain trespass, 457. Bank notes, when a good tender, 314, 319. B. 683 |