TROVER. As the wager of law was a legal method of defense to detinue as well as to debt, it became as desirable to substitute a new action for definite as it was to have assumpsit in place of debt. Accordingly, with the progress of pleading, there was developed the action of trover, ( from the French verb trouver, meaning to find), which was based upon a supposed finding by the defendant of the thing de manded, and converting it to his use. Gradually the allegation of finding became a pure fiction, and the de fendant was not permitted to traverse (deny) it. Troyer thus became sustainable against any person who had in his possession, no matter how that pos session was acquired, the personal property of another, and who sold or used that property without the con sent of the owner, or refused to deliver it upon the owner's demand. The injury lies in the conversion, and the action is brought for the recovery of damages to the value of the thing converted, and not to recover possession of the chattels themselves. Satisfaction of the judgment for the plaintiff transfers the title to the chattel to the defendant, the same as if he had paid the purchase price.
Troyer lies only for the conversion of some per sonal chattel, and not for injuries to real property. It is sustainable only for specific articles, but as only damages are demanded the description need not be so specific as in detinue.
In order to support the action of trover the plaintiff must have had at the time of the conversion a general or special property in the chattel converted, and either' the actual possession, or the right to immediate pos session. Generally, if the property be only special, the possession must have been actually- in the plaintiff, but there is an exception to this rule, in the case of one who has also an interest in the goods converted.
Conversion may consist in a wrongful taking, or an illegal assumpsit of ownership, or an illegal use or mis use of the chattel, or its wrongful detention. But a mere omission or non-feasance is not sufficient to sup port trover. Where the plaintiff is not prepared to prove a wrongful taking, or a wrongful use, or the like, he must make an actual demand upon the de fendant before bringing suit, and must prove such actual demand and the defendant's refusal thereof, or such neglect to comply as amounts to a refusal. Such demand and non-compliance are prima facie evidence of a conversion, which the defendant may rebut by showing that the chattel was lawfully in his posses sion, and that he lost it through negligence; or that he was uncertain as to plaintiff's title and offered to deliver the chattel to the true owner ; and the like. 'There is no conversion unless the act complained of amounts to a denial of the plaintiff's right to posses sion. If the chattel has been once converted, its re storation to the plaintiff, or a tender of it will not cure the injury, such tender will only mitigate damages. Where it is doubtful whether the evidence will estab lish a conversion, a count in case, for negligence, should be joined.
One joint-tenant or tenant in common or co-par cener cannot support trover against his co-tenant, un less the latter has destroyed or sold the chattel in ques tion, as each has a right to its possession.
For a wrongful taking, trover may be brought con currently- with trespass ; but trespass will not lie where the taking was lawful or excusable. The declaration in trover should state that the plaintiff was possessed of the goods in question as of his own property ; that thev came into the defendant's possession by finding, and that the defendant converted them to his own use, to the damage of the plaintiff in the sum of S.... dollars. The damages should be alleged large enough to cover the value of the goods, and the loss through their detention, judgment being for damages and costs. The allegation of finding is not traversable, and its omission is cured by verdict.