CHAPTER IV

TORTS AGAINST PERSONAL PROPERTY RIGHTS AND THEIR REMEDIES

§ 49. Violations of Personal Property. We do not speak of violations of the personal property one has in remedial obligations, for such property is the result of one legal wrong already. The violations of the other personal property rights in personam acquired by original acquisition are known as breaches of contracts and quasi-contracts, if caused by the party under obligation. Violations of such rights are torts if caused by outsiders, for as to them they are rights in rem. The violations of the personal property rights in rem, both those acquired by original acquisition in occupancy, accession, and intellectual labor, and those acquired by secondary acquisition in some act of law, in gifts, wills, bailments, leases, assignments, indorsements, and sales, are known as torts, many having specific names. Such rights in rem may be either absolute or qualified; a violation of either is a tort of some kind.

One who violates the qualified property right another has in a dead body by mutilation of the dead body, or disturbing the grave, or defacing the monument, is guilty of trespass. A person who violates the qualified property of a bailee as respects chattels in his possession is guilty of conversion if he exercises acts of dominion over the same, or of trespass for simple injury by force, or of negligence if there is an act or omission in failing to exercise ordinary care and it causes injury. The bailee may recover either for the injury to his own property, or for total injury and hold the excess for the bailor. A person who violates the qualified property of another in wild animals is guilty of the same torts as above. A person is guilty of the tort of

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conversion whenever he exercises dominion over the personal property of another, whether it is absolute or qualified, general or special, or whether it relates to corporeal chattels, or incorporeal evidenced, by corporeal. A person is guilty of the tort of deceit or fraud, whenever he misleads another to his damage by false and fraudulent representations. A person is guilty of the tort of infringing a trade-mark, when he dresses up his own goods so as to induce ordinary purchasers to believe that they are the goods trade-marked by another; of infringement of patent, when he makes, uses, or vends, without the owner's permission, a thing substantially identical with a thing patented; of infringement of a copyright, when he prints, publishes, imports, or knowingly exposes for sale any such printings, etc., of any books, etc., which have been copyrighted, or such a part thereof as to sensibly diminish the value of the same.

A person is guilty of the tort of negligence to personal property, when, being in a situation to know that acts or omissions of his in failing to exercise ordinary care towards such property will be apt to do injury, yet is guilty of such acts or omissions and causes injury. A person is guilty of nuisance affecting personal property when he causes or suffers the existence upon his own premises, or in public ways or waters, anything not naturally there, which while there causes damage to another's personal property. A person is guilty of the tort of procuring refusal to contract when he interferes with another's enjoyment of the fruits and advantages of his enterprise, industry, skill, and credit, by interfering with a known relation which he has to a third person to his actual damage. A person is guilty of the tort of procuring a breach of contract when, knowing of the existence of a contract between a second and a third person, he procures such third person to break his contract to the damage of such second person. A person is guilty of the tort of trespass to personal property when he takes or interferes with the possession of another's chattels without permission, unless in either case

he has a better right than such other person to the possession of the objects of such property.

The following are illustrations of torts which violate the rights of personal property. A street-car motorman carelessly and negligently runs his car at a very high rate of speed, in the business part of a city and across cross streets, and in so doing runs into and demolishes a vehicle belonging to P and in which P is riding across the street-car track, P not being guilty of contributory negligence. The streetcar company is liable for the tort of negligence. D, a lawyer, is employed by P to take statutory proceedings against his apprentices for misconduct. D proceeds under a section of the statute relating to servants and not to apprentices. D is guilty of the tort of negligence. His wrong may also be treated as a violation of the contract rights resulting from the relation of employer and employe.

D buys an ox of P, paying $25 therefor, and is directed. to go and take the animal from an enclosure. D, by mistake, takes the wrong ox. He is guilty of the tort of conversion. A's horse strays away. B sees the animal, catches it, puts it into his stables, and refuses to give it up when A discovers it there and demands it. B is guilty of conversion. D, with the knowledge of the existence of a valid contract between P and X, an innkeeper, by which contract P has the exclusive right to secure and send guests to X's hotel throughout certain territory, induces X to break his contract with P and to employ D for the same purpose in the same territory. This is the tort of procuring breach of contract, and D is liable for the damage caused P. D sells three horses for $400, which is paid. The horses are afflicted with glanders, but D falsely represented that they were sound, and P reasonably relied upon the representa. tion and bought the animals because thereof. The horses have to be killed because of their disease and other property has to be burned to stop the contagion. D is guilty of the tort of deceit, or fraud. A shoots and kills some hens and turkeys owned by B on B's land without having permission to do so, but he does not appropriate the articles

to his own use. He is guilty of the tort of trespass. The same would be true in case one should shoot wild game on another's land.

§ 50. Remedies and Actions. A person is entitled to the preventive remedy of injunction, a prohibitive writ to restrain the doing of an act which would be a legal wrong, where the injuries threatened would be irremediable. The action for procuring such relief is a bill of equity. A person is entitled to the redressive remedy of specific performance in case of a breach of contract to sell chattels of peculiar but non-marketable value. The proper action for securing such relief is another bill in equity. But the great remedy to which a person is entitled after his legal rights of personal property (as any other legal rights), have been violated, is the redressive remedy of compensation, called damages.1 The rules of damages are considered elsewhere. The proper action for securing such relief in the so-called code States is a formless action, known as a civil action; but under the common-law procedure there are a number of available actions, which may be divided into two classes, contract and tort. The contract actions are covenant, debt, detinue, special assumpsit, and general assumpsit. Covenant will lie for damages for breach of contract under seal, where it is not for a specific sum of money. Debt will lie for the recovery of a sum certain, whether due by simple contract, specialty, record, or statutory and customary obligations, where a quid pro quo has passed to the debtor or the contract is under seal. Detinue is a form of debt which will lie for the recovery of specific chattels to which the plaintiff already has title, though in the event they cannot be returned their money value is obtained. Special assumpsit is an action which will lie for the recovery of damages for the breach of a contract created by express agreement. General assumpsit is an action which will lie for the recovery of damages for breach of quasi-contracts and inferred contracts; it is divided into indebitatus assumpsit with its various counts, and into quantum meruit and 1 Willis on Damages, 14-16.

quantum valebat. The tort actions available to redress legal wrongs violating personal property are trover (or conversion) replevin, trespass, trespass on the case, and perhaps case as distinguished from trespass on the case.

§ 51. Trover, Etc. Trover is a specialized form of case devised for the purpose of the recovery of damages for the conversion of chattels in which the plaintiff has a personal property right in rem, absolute or qualified. Replevin is an action designed to protect the right in rem of possession merely, and lies for the recovery of the possession of any chattels taken from the plaintiff unlawfully. By statute the actions of replevin and detinue have generally been merged in modern times into an action sometimes called replevin, and sometimes claim and delivery, and such action lies either for the unlawful taking or the unlawful detention of chattels. Trespass is an action which lies for the recovery of damages for any injury done to personal property rights in rem (or real property or to the person) by the direct and wrongful application of force by one not in the lawful possession thereof. Anciently, trespass lay only for a wrongful invasion of possession, so far as it concerned property rights, and the wrongful act had to be done by one not in the lawful possession, and the ancient doctrine still obtains except as the latter part of it has had small changes. Trespass on the case is an action in the nature of trespass, where so far as personal property is concerned, a person is sued for the recovery of damages for injury to rights in rem caused by independent agents of harm, as servants, animals, and inanimate dangerous things like fire, explosives, or accumulation of water. There are a number of actions on the case, or as they are sometimes called, trespass on the case. They are all formless actions based on legal duty and bearing some similarity to older actions.

§ 52. Special Assumpsit, Etc. Special assumpsit is an action on the case in the nature of deceit; general assumpsit is an action on the case in the nature of debt; trover is an action on the case in the nature of detinue; trespass on the case is an action on the case in the nature of trespass, and