Daniel W. Bradley vs. Daniel Davis, 14 Me. 44

After a continuance, nisi, the opinion of the Court was drawn up by Weston C. J. The general property in the harness being in the plaintiff, drew after it such a constructive possession in him, as would enable him to maintain trespass against a stranger. The bailee being answerable to the general owner, may also bring trespass ; and the right to maintain it attaches in him, who first brings the action. But a party shall not be charged as a trespasser for goods, which he received by delivery from the owner.

Williams, in his notes to Saunders, 2 Saund. 47, note 1, says, that where the taking is lawful or excusable, trespass cannot be supported; but the owner must bring trover. And such was the opinion of the Court in Cooper v. Chitty, 1 Burrow, 20, and in Smith et al. v. Miller, 1 T. R. 475. In ex parte Chamberlain, 1 Schoales & Lefroy, 320, Lord Chancellor Redesdale says, that trespass cannot be brought for goods that were lawfully delivered. If a party comes to the possession of goods lawfully, for any subsequent unlawful conversion of them, the appropriate remedy is trover.

And this action will lie, where trespass will, for the unlawful taking is a conversion. But Sergeant Williams, in the note before cited, says, that the converse of this proposition is not true. It has been ingeniously argued by the counsel for the plaintiff, that any act is a trespass, in relation to the goods of another, for which there is no justification or excuse. But the remedy for every such act, is not trespass vi et armis. That would be confounding all distinction between trespass and trover. Every unlawful conversion, is without justification or excuse.

If a man hires a horse to use two days, and he continues to use him the third day, it could hardly be contended that trespass would lie; although such use would be unlawful; and the owner would be entitled to the immediate possession. Yet being the general owner, and as such having a constructive possession, he might undoubtedly maintain trespass against a stranger, who should presume to use the horse on the third day. The ground of distinction is, that the taking by the stranger, would be tortious from the first.

If A permits his goods to remain with B for his own use, and B delivers them to C to carry to another place, trespass does not lie by A against C. 6 Comyns, Trespass, D. The reason is, that B had the goods by delivery from the owner. In the Six Carpenters’ case, 8 Coke, 146, it was resolved, that whoever abuses an authority or license derived from the law, becomes thereby a trespasser ab initio; but that it is otherwise, where the license or authority is derived from a party.

And Baron Comyns deduces from that case the general principle, that if a man has license or authority from the plaintiff himself, trespass does not lie against him, though he abuses his license by misfeasance. 6 Comyns, Trespass D. The opinion of the Court is, that upon the facts in the case, an action of trespass cannot be supported. Verdict set aside.