EFFECT OF NOT GUILTY IN TROVER.

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§ 226. "In an action of trover for converting the plaintiff's goods, the plea of not guilty will operate as a denial of the conversion only, and not of the plaintiff's title to the goods" (e). The most difficult question that has arisen on the construction of this rule has related to the effect of the word "conversion." For several years it was held, in conformity with a decision of the Court of Exchequer in Stancliffe v. Hardwick (ƒ), that this word did not signify wrongful conversion, but the mere fact of conversion, and, consequently, that under the plea of not guilty, the lawfulness or unlawfulness of the act of conversion could not come in question. It has recently, however, been admitted by the Barons of the Exchequer, that they came to an erroneous conclusion in that case, and that, in fact, the new rules have made no difference as to the meaning of a conversion (g). As therefore, before these rules, the plea of not guilty put in issue, not only the act itself, but all the circumstances which rendered the act wrongful, precisely the same effect must be given to the plea now, excepting only that, as it admits the plaintiff's title, it must be coupled with the plea of not possessed, whenever the defence set up is inconsistent with the existence of such title. Thus, under the general issue alone the defendant cannot rely on the fact, that the chattel in question had been sold or given to him by the plaintiff, though the only evidence of conversion is a demand and refusal (h); neither, it seems, is such a defence as a lien, a pledge, or the like, admissible under this plea (i); but the defendant must put on the record the plea of not possessed, which denies the plaintiff's right to the immediate possession of the goods, as well as his property in them (j).

§ 227. In commenting on the decisions which established this

(e) Reg. Gen. H. T. 4 Will. 4, Plead. in Par. Act., IV. Case, 5 B. & Ad. ix. 2 C. M. & R. 1; 5 Tyrw. 551, S. C.; Vernon v. Shipton, 2 M. & W. 9; Barton v. Brown, 5 M. & W. 298; Weeding v. Aldrich, 9 A. & E. 861, 863, 866, 867, per Coleridge, J.; 1 P. & D. 657, S. C.

(g) Whitmore v. Greene, 13 M. & W. 107, per Parke, B.; Kynaston v. Crouch, 14 M. & W. 272, per id. (h) Barton v. Brown, 5 M. & W. 298.

(i) White v. Teale, 12 A. & E. 114; 4 P. & D. 43, S. C.

(j) Owen v. Knight, 4 Bing. N. C. 54; 5 Scott, 307; 6 Dowl. 245, S. C.; Mason v. Farnell, 12 M. & W. 683; Brandào v. Barnett, 1 M. & Gr. 908; 2 Scott, N. R. 96, S. C.

224

DISTINCTION BETWEEN DETINUE AND CASE.

rule, the barons of the Court of Exchequer have recently declared, that it is proper to abide by their authority, though they significantly add, that "no doubt plausible reasons may be assigned for saying, that the proper plea on which such a defence as a lien, or the like may be made, is the plea of not guilty, by which the conversion is denied" (k). On the whole, it seems now clearly determined that as the conversion, on which an action of trover is founded, is always a wrongful act, it cannot be confessed and avoided by any matter in excuse, for if the circumstances relied on show that the sale or detention of the chattel was lawful, they will disclose no conversion in law (). In fact, the pleas of not guilty and not possessed together now make up the old plea of not guilty; and whatever might be given in evidence under that plea, before the new rules, may be now proved under one or other of these pleas (o); in other words, every defence upon the merits may be set up, except the statute of limitations (p), the nonjoinder of other parties as plaintiffs (q), an accord and satisfaction (r), a release (s), a prior judgment recovered by or against the defendant (t), or against a third party (u), or other the like defence, which, admitting the plaintiff's property, and the defendant's wrongful conversion at some time past, assigns some subsequent matter whereby the action has become no longer sustainable (v). It will be seen, by referring back to the rule of pleading in detinue (w), how wide a distinction exists between Non-detinet and Not possessed in that form of action, and the analogous pleas

(k) Mason v. Farnell, 12 M. & W. 683.

() Id.; Whitmore v. Greene, 13 M. & W. 107, per Parke, B.

(0) Whitmore v. Greene, 13 M. & W. 107, per Alderson, B.; Unwin v. St. Quintin, 11 M. & W. 277; Leake v. Loveday, 4 M. & Gr. 972; 2 Dowl. N. S. 624, S. C.; Isaac v. Belcher, 5 M. & W. 139; 7 Dowl. 516, S. C.; Wilkinson v. Whalley, 5 M. & Gr. 590; Howarth v. Tollemache, 4 M. & Gr. 427.

(p) Philpott v. Kelley, 3 A. & E. 106; Swayn v. Stephens, Cro. Car. 245, 333; Cowper v. Towers, 1 Lutw. 99. (9) See ante, § 211.

(r) Pears. Chit. Pl. 683, n. (a).

(s) Hawley v. Peacock, 2 Camp. 558, per Lord Ellenborough.

(t) Lechmore v. Toplady, 1 Show. 146.

(u) Cooper v. Shepherd, 4 Dowl. & L. 218.

(v) See White v. Spettigue, 13 M. & W. 603; Comyns v. Boyer, Cro. Eliz. 485; Leyfield's case, 10 Rep. 88, (b); Unwin v. St. Quintin, 11 M. & W. 277; Cooper v. Shepherd, 4 Dowl. & L. 224, 225, per Tindal, C. J.

(w) Ante, § 217.

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in actions of trover; a distinction which, however well founded it may be, on technical reasoning, evinces no very scientific knowledge in the original framing of the rules, and is calculated, unless carefully attended to and understood by the pleader, to lead to great embarrassment at the trial, and possibly to as great injustice.

§ 228. "In actions of trespass quare clausum fregit, the plea of not guilty shall operate as a denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the plaintiff's possession or right of possession of that place, which, if intended to be denied, must be traversed specially. In actions of trespass de bonis asportatis, the plea of not guilty shall operate as a denial of the defendant having committed the trespass alleged, by taking or damaging the goods mentioned, but not of the plaintiff's property therein " (q). In accordance with this last rule, it seems clear that a defendant cannot, under the general issue, give in evidence a lien, or show that he had any other special property in the goods seized at the time of the trespass; but if he intends to rely on any such defence, he must either plead specially, or perhaps more correctly traverse the plaintiff's possession (r). In

case of trespass for seizing furniture, where the evidence established the seizure in a stranger's house, Mr. Justice Coleridge is reported to have held, that, without some proof connecting the plaintiff with the stranger or the goods, the defendant would be entitled to a verdict on his plea of not guilty (8); but this dictum, if indeed it was ever pronounced, seems obviously opposed to the express language of the rule stated above, and is, moreover, at variance with the principle of law laid down in Dunford v. Trattles (t) by the Court of Exchequer. We therefore merely cite the case in order to warn our readers against considering it as an authority. Again, it is undoubted law that, in an action of trespass for taking the plaintiff's goods, the defendant cannot, under the

(2) Reg. Gen. H. T. 4 Will. 4, Plead. in Par. Act., V. Trespass, 5 B. & Ad. ix. x. These rules also provide, that pleas of rights of way, or of common, or other similar rights may be taken distributively.

(r) Jackson v. Cummins, 5 M. & W. 344, 349, per Parke, B. Richards & Symonds 8.2.13.90 (s) Forman v. Dawes, C. & Marsh, 127.

(t) 12 M. & W. 529, ante, § 220.

226

NOT GUILTY IN TRESPASS FOR COLLISION.

general issue, prove in mitigation of damages a re-payment by him, after action brought, of the money produced by the sale of the goods (t). Whether, if such an action be brought against an attorney, and it be proved that he delivered a fieri facias to the sheriff who thereupon took the goods, the defendant will be entitled, under the general issue, to give in evidence a judgment on which the fieri facias issued, is a point not yet decided (u); but the better opinion seems to be, that such evidence would not be admissible without being specially pleaded. Perhaps, however, the attorney, under the plea of not guilty, might show that, though to a certain extent he had interfered in the transaction, his conduct was not such as to involve responsibility. For instance, he would probably be allowed to prove, that he had merely handed over the writ to the sheriff's officer, with no more concurrence than that of a postman who conveys a letter (v).

§ 229. The new rules contain no provision in regard to the plea of not guilty in actions of trespass for assault, or other injury to the person. Nor was it necessary that they should, inasmuch as, before they were promulgated, that plea merely denied that the defendant did the act complained of, and all matters in confession and avoidance, or in justification or discharge, were, as they still are, required to be specially pleaded (w). Some doubts have existed as to the effect of not guilty in actions of trespass, which arise out of collisions ; but it seems now pretty generally understood, that, on the one hand, the defendant, under this plea, may show either that the plaintiff drove against him instead of his driving against the plaintiff (x), or that his horse was frightened and rendered ungovernable by

(t) Rundle v. Little, 6 Q. B. 174. Lord Denman there observed, “It is important to uphold the principle, that a plaintiff is entitled to recover by way of damages all that, at the commencement of the suit, he has lost through the wrongful act for which the defendant is sued.

(u) Rundle v. Little, 6 Q. B. 174.

(v) Rundle v. Little, 6 Q. B. 177, per Lord Denman; and Green v. Elgie, 5 Q. B. 113, 114, per id., explaining a dictum of Patteson, J. in Codrington v. Lloyd, 8 A. & E. 453, and a ruling of Lord Kenyon in Sedley v. Sutherland, 3 Esp. 203.

(w) 1 Chit. Pl. 534, 535. As to the nonjoinder of other parties as plaintiffs, see ante, § 211.

(x) Pearcy v. Walter, 6 C. & P. 232, per Gaselee, J.

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227

the act of a third person (y), or by the act of God, as by thunder or lightning, or, in short, that the accident had resulted entirely from a superior agency (z); but, on the other hand, he cannot prove that the injury done by him was unintentional or merely accidental, or was even occasioned by the negligence of the plaintiff, because his act, being primâ facie unjustifiable, requires an excuse to be shown by a special plea (a). By contrasting what is here said with our former observations (b) on the effect of not guilty in case for negligence, the distinction between the general issue, as pleaded to one or other of the two forms of action, trespass and case, will be at once apparent (c).

§ 230. The effect of not guilty in actions of trespass may, in general, be ascertained with tolerable certainty, if the doctrine laid down by Lord Mansfield, that "no man is bound to justify who is not primâ facie a trespasser" (d), be used as a test. Thus, a pound-keeper, who has had nothing to do with the seizure of the plaintiff's cattle, but who, without exceeding his duty or assenting to the original trespass, has merely impounded the cattle when brought to him, may establish a successful defence on the plea of not guilty; though a gaoler, who has a prisoner in custody, must justify, because he is primâ facie guilty of an imprisonment, and cannot have acted legally without a warrant (e). So, it seems that a judge of the Superior Courts, who in his judicial capacity commits a man for a contempt, may, under not guilty, defend an action of trespass (f), though, perhaps, a ministerial or magisterial officer would be bound to place on the record a special plea (g).

(y) Gibbon v. Pepper, 2 Salk. 637; 1 Lord Raym. 38, S. C.; Goodman v. Taylor, 5 C. & P. 410, per Lord Denman.

(≈) Hall v. Fearnley, 3 Q. B. 919.

(a) Id.; Boss v. Litton, 5 C. & P. 407, per Lord Denman; Weaver v. Ward, Hob. 134, 5th ed.; Knapp v. Salsbury, 2 Camp. 500, per Lord Ellenborough. See Wakeman v. Robinson, 1 Bing. 213; 8 B. Moore, 63, S. C.

(b) Ante, § 223.

(c) See Hall v. Fearnley, 3 Q. B. 920, per Lord Denman.

(d) Badkin v. Powell, 2 Cowp. 478. See Milman v. Dolwell, 2 Camp. 378, per Lord Ellenborough. (e) Badkin v. Powell, 2 Cowp. 476, 478, 479.

(f) Dicas v. Lord Brougham, 6 C. & P. 249, 270, per Lord Lyndhurst; 1 M. & Rob. 309, S. C.; Bushell's case, 1 Mod. 119.

(9) Per Campbell, S. G., arguendo, in 6 C. & P. 269; Garnett v. Ferrand,