III. The Declaration-Plea, and herein of the New Rules Defence, and herein of the Doctrine of Liens-Evidence Of staying the Proceedings-Damages-Costs -Judgment. Venue. This is a transitory action, and the venue may be laid in any county. The declaration states, that the plaintiff was lawfully possessed of the goods in question (10), as of his proper goods and chattels (11), and that being so possessed, he casually lost them, and that they came to the hands and possession of the defendant, by finding (12), who afterwards (13) converted (14) them to his own use. a Brown v. Hedges, Salk. 290. (10) The goods in question should be described with such convenient certainty, that the jury may know what is meant, but in this action the same accuracy and precision are not required as in the action of detinue, which is for the recovery of the things themselves in specie, if to be had. Hence, a declaration in trover for twenty ounces of cloves and mace*, ten pair of curtains and valancet, for a parcel of diamonds, for the furniture, apparel, &c. belonging to such a ship§, has been holden good. (11) The omission of the words " as of his proper goods," is cured by verdict, Jones v. Winkworth, Hardr. 111.; but fatal after a judgment by default. Swallow v. Ayncliff, B. R. M. 2 G. 2. MSS. (12) The conversion is the gist of the action, and the manner in which the goods came to the hands of the defendant is only inducement||; and, therefore, the plaintiff may declare that the goods came to the possession of the defendant generally or specially, by finding, (though the defendant came to the goods by delivery¶,) or that the defendant fraudulently, at cards, won money of the plaintiff from the wife of the plaintiff**. (13) In the declaration the conversion was laid, under a scilicet, to be on a day before the trovertt. Upon motion in arrest of judgment, the declaration was holden to be good, for the postea convertit is sufficient, and the scilicet is void. (14) Though it be necessary to allege a day and place of con * Hartford v. Jones, Salk. 654. + Taylor v. Wells, 2 Saund. 74. White v. Graham, Str. 827. Lord Raym. 1530. Isaack v. Clark, 2 Bulstr. 306. 2 Bulstr. 313. per Coke, C. J. *Vid. Ent. 265. ++ Tesmond v. Johnson, Cro. Jac. 428. This is the substance of the declaration in common cases. Where the action is brought by an executor, administrator, or the assignees of a bankrupt, the character in which the parties sue must of course appear on the face of the declaration. Care must be taken to state the possession to be in the person to whom the property belongs. In an action of trover by the assignee of bankrupt partners, the declaration consisted of one count only, in which the possession was stated to be in the partners. It appeared in evidence, that the greater part of the goods in question belonged to one of the partners only, before the commencement of the partnership, and had never been brought into the partnership fund. It was proved, that the residue of the goods was part of the joint estate. Per Kenyon, C. J. The plaintiff under this declaration is entitled to recover the value of such goods only as have been proved to belong to both the partners as partners. Had there been a count in the declaration, stating the possession in the assignee, as this was a joint commission, and the assignment under such commission passes both separate and joint effects, the whole might have been recovered; as it is, the verdict must be for that part only which has been proved to be the property of the partners. The jury found a verdict accordingly. In trover by husband and wife, the declaration ought not to allege the possession in them both, nor state the damage to have accrued to them both; for the law transfers, in point of ownership, the whole interest to the husband. If trover be brought against husband and wife, and it is alleged in the declaration that they converted the goods to their own use, formerly the judg ment might have been arrested or reverseds on writ of error, version*, (or of a request and refusal, which is tantamount+,) yet as it is a transitory action, the conversion may be laid here, and proved in Ireland‡. *Hubbard's case, Cro. Eliz. 78. + Wilson v. Chambers, Cro. Car. 262. but the law is otherwise nowh (15). It seemsi, as the conversion is a tort, that the wife may be charged with it in the same manner as with a trespass; that is, the declaration may state, that the husband and wife converted the goods, omitting the words, to their own use. Plea, and herein of the New Rules. The general issue in this action is not guilty. By R. G. H. T. 4 W. 4. IV. 1., in an action for converting the plaintiff's goods, the plea of not guilty shall operate as a denial of the conversion only, and not of the plaintiff's title to the goods; and by IV. 2., all matters in confession and avoidance shall be pleaded specially as in actions of assumpsit. Where the plaintiff in trover claims under a sale, the defendant, under a plea that the goods are not the plaintiff's property, cannot shew the sale to have been fraudulent; the fraud must be pleaded specially. The plea of no property in the plaintiff means no property as against the defendant. Since the new rules, a defendant who pleads not guilty alone in an action of troverm, admits thereby that the plaintiff has some property in the goods, in respect of which he would be entitled to recover against the defendant; but such admission does not preclude the defendant from shewing that he is tenant in common with the plaintiff; if, however, there has been a conversion in fact, as by seizure and sale, he must justify such conversion specially by way of confession and avoidance, and he cannot, under the plea of not guilty, shew that he was justified, as tenant in common with the plaintiff, in committing the conversion in fact. The conversion which is put in issue by the h Keyworth v. Hill, 3 B. and A. 685. k Howell v. White, 1 M. & Rob. 400. m Stancliffe v. Hardwick, 2 Cr. M. & (15) So in trespass* against baron and feme for entering an house, and taking goods, the declaration stated, that they converted the goods to their own use; on motion in arrest of judgment, the declaration was holden good; for the conversion in this case is not the gist of the action, and the action being maintainable for entering the house and taking the goods, the court will intend that the damages were given for those trespasses only. * Smalley v. Kerfoot, Str. 1994. Andr. 242. S. C. Pullen v. Palmer, Bull. N. P. 46. S. P. plea of not guilty, since the new rules, is a conversion in fact, and not merely a wrongful conversion; and wherever there has been a conversion in fact, and the defendant insists that such conversion was lawful, he must confess and avoid it, by pleading specially the right or title by which he was justified in the conversion. The defendant may plead the statute of limitations, viz. that the cause of action did not accrue at any time within six years next before the commencement of the plaintiff's action. Where the plea was, that the cause of action did not accrue within six years next before the exhibiting of the plaintiff's bill, and the declaration was filed generally as of Michaelmas Term, it was holdenP, that defendant might give evidence of the time when it was actually filed, in order to support the allegation in his plea. The statute is a bar to an action commenced more than six years after the conversion, although the plaintiff did not know of the conversion until within that period, the defendant not having practised any fraud to prevent the plaintiff from obtaining that knowledge at an earlier period. Where an executor, several years before, had left some goods in the house, by the consent of the heir, who used them afterwards, and within six years of the action brought, the executor demanded the goods, and the heir refused to deliver them, whereupon trover was brought and the statute of limitations pleaded; it was holden, that the user before the demand was neither a conversion, nor any evidence of it; for it was with the consent of the executor until that time: and the demand being within six years, the refusal, which ensued it, and which was the only evidence of a conversion in the case, was within the six years; and if a trover be before the six years, and a conversion after, the statute cannot be pleaded. Bankruptcy of the defendant, after the cause of action accrued, cannot be pleaded, because the damages in trover are uncertain®. Defence, and herein of the Doctrine of Liens. The most usual defence to this action is, that the defendant has a lien on the goods, or a right to detain them. It will be proper, therefore, to inquire under what circumstances a party may insist on this defence. There are two species of o 21 Jac. 1. c. 16. p Granger v. George, 5 B. and C. 149. q Ib. r Wortley Montague v. Lord Sandwich, 7 Mod. 99. cited by Lawrence, J. in Topham v. Braddick, 1 Taunt. 577. See Philpott v. Kelley, 3 Ad. & Ell. 106. 4 Nev. & M. 611. s Parker v. Norton, 6 T. R. 695. liens known to the law, namely, particular liens and general lienst. Particular liens are, where persons claim a right to retain goods, in respect of labour or money expended on such goods, and these liens are favoured in law. General liens are claimed in respect of a general balance of account; and these are founded on express agreement, or are raised by implication of law, from the usage of trade, or from the course of dealing between the parties, whence it may be inferred, that the contract in question was made with reference to their usual course of dealing. By the common law, where a party is obliged to receive goods, he is also entitled to retain them for his indemnity (16). Upon this principle, it has been holden, that common carriers" (17) and innkeepers have a particular lien on the goods intrusted to their care. In like manner, millers have a particular lien on the produce of corn, which they have ground, for the price of grinding. So a shipwrighty has a lien upon a ship for repairs. A person3, who by his own labour preserves goods, which the owner, or those entrusted with the care of them, have either abandoned in distress at sea, or are unable to protect and secure, is entitled by the common law of England to retain the possession of the goods saved, until a proper compensation is made to him for his trouble (18). The reason of this rule is obvious; t Per Heath, J. 3 Bos. & Pul. 494. and per Kenyon, C. J. 1 Esp. N. P. C. 109, per Lord Mansfield, C. J. 4 Burr. 2221. u Skinner v. Upshaw, Lord Raym. 752. x Exp. Ockenden, 1 Atk. 235. (16) It was said by Ryder, C. J. delivering the opinion of the court in Brenan v. Currant, T. 28 and 29 G. 2. B. R. MSS. that he had not found it laid down as a general rule, that the remedy by retainer was co-extensive with the obligation to receive goods. But see Lord Raym. 867. (17) See further as to the lien of carriers, ante, tit. Carriers. Sect. III. p. 408, and Rushforth v. Hadfield, 7 East, 224. (18) By stat. 26 G. 2. c. 19. s. 5. it is enacted, "that in case any person not employed by the master, mariners, or owners, or other persons lawfully authorized, in the salvage of any ship, or the cargo or provision thereof, shall, in the absence of persons so employed or authorized, save any such ship or goods, and cause the same to be carried for the benefit of the proprietors, into port, or to any adjoining custom-house or place of safe custody, immediately giving notice thereof to some justice, magistrate, custom-house or excise officer, or shall discover to any such magistrate or officer, where any such effects are wrongfully bought, sold, or concealed, |