as his own goods; nor is his possession of them a possession with the consent and permission of the true owner within the meaning of the statute. This is the case with respect to possession by trustees of government stock and shares in the public funds, and joint-stock companies, &c., whether the trust does or does not appear upon the bank books, or the books or register of the company. (f) However, where the trust has not been created by a third person, but by the cestui que trust, or person beneficially interested himself, who has clothed the bankrupt trustee with the apparent ownership of shares in a public company by buying them in the name of the latter and procuring him to be registered as a shareholder, and permitting him to have possession of the scrip certificates and to attend the meetings of the company, and vote as owner, there may be an apparent ownership with the consent of the true owner, within the mischief of the statute, for a delusive credit may be occasioned by a secret trust of that description (g). So property of testators and intestates, held by executors and administrators, in the ordinary course of their administration, is held by them as trustees, and does not, therefore, pass to the trustee for the benefit of creditors in case of their bankruptcy (h). But if they are allowed to continue in possession of the trust property for several years, and to trade with it, to all appearance, on their own account, by the persons who are entitled to dispute their possession, and call them to account, the property will be deemed to have been in the possession of such executors, &c., as reputed owners, with the consent of the true owners, within the statute (i).

A seizure by a sheriff, under an execution against a bankrupt, of the goods and chattels of a third person in the possession, order, and disposition of the bankrupt, with the consent of the true owner, does not in any way withdraw the goods from the possession, order, or disposition of the bankrupt, so as to interfere with the title of the trustee. (k)

520. Goods in the apparent possession of the bankrupt with

(1) Rogers, Ex parte, 25 Law J., Bankr. 41. Witham, Ex parte, 1 M. D. & De G. 624. Pinkett v. Wright, 2 Hare, 120. Ex parte Stewart, 34 Law J., Ch. 6.

(g) Burbridge, Ex parte, 1 Deac. 142. Grd. Ex parte, ib. 170.

(h) Ld. Mansfield, Howard v. Jemmett,

3 Burr. 1369. Ludlow v. Browning, II Mod. 139.

(i) Fox v. Fisher, 3 B. & Ald. 136. Thomas, Ex parte, 3 M. D. & De G. 40. (k) Barrow v. Bell, 5 Ell. & Bl. 549; 25 Law J., Q. B. 3.

in the Bills of Sale Act.-By the 17 & 18 Vict. c. 36 (the Bills of Sale Act, 1854), s. 1, it is enacted that all bills of sale not duly filed, &c., according to the Act, shall be void as against assignees of bankrupts, sheriff's officers, &c., so far as regards the property in, or right to the possession of, the chattels comprised in the bill of sale, which at the time of the bankruptcy shall be in the possession, or apparent possession of the bankrupt (1); and by s. 7, it is provided that personal chattels shall be deemed to be in the "apparent possession" of the person making the bill of sale, so long as they shall remain in any house, mill, warehouse, &c., land, or other premises. occupied by him, or shall be used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by, or given to, some other person. Where the holder of an unregistered bill of sale of furniture took formal possession of the goods, by sending in a man to take possession, who remained in the house, out did not remove the furniture, or interfere with its use by the bankrupt, and subsequently put up placards announcing an auction of the furniture, but nothing appeared in the placards to show that it was not a sale made by the bankrupt himself, it was held that the goods remained in the apparent ownership of the bankrupt, within the above Act, and passed to the trustee in bankruptcy. () The mere fact of the goods remaining in the house, however, is not of itself fatal to a bill of sale, if they have ceased at the date of the bankruptcy to be in the actual or apparent possession of the bankrupt. (n)

521. Title to trust property.-A trustee can never assert a title of his own to trust property. He may destroy that property, and render himself responsible in consequence; if it be stock, he may sell the stock, and invest the proceeds in other property. If he destroy the trust fund by paying away the money, the trust is at an end; but if he invests it in other property, and that can be traced, he is still in possession of the trust property, and to that he can never assert a right. If a person having trust property and property of his own chooses to mix the two together, the whole becomes trust property, subject to this, that whatever he can distinguish as

(4) See Ex parte Cohen, L. R., 7 Ch. App. 20. (m) Ex parte Lewis, L. R., 6 Ch. App.

626; ex parte Hooman, re Vining, L. R., 10 Eq. Ca. 63, acc.

(n) Gough v. Everard, 2 H. & C. I.

his own he can take out; whatever he cannot distinguish remains for the benefit of the trust until that trust is satisfied. Property has been frequently identified through a long course of dealings and transactions as being the original assets, which may be followed and clothed with the original trust. (0)

522. Right of property in things taken and converted after recovery of judgment in an action for the conversion of them.— The recovery of judgment by a plaintiff in an action for the wrongful taking and converting his goods and chattels has the effect of transferring the property of the goods converted from the plaintiff to the defendant if the judgment has been satisfied. The plaintiff, by recovering damages for the wrong, loses his right of property in the chattel that has been converted, and this transfer of the right of property dates back, by relation, to the time of the conversion. The damages recovered by the plaintiff against the defendant are regarded as the price of the goods, "so that the defendant hath now the same property therein as the original plaintiff had, and this against all the world." (p) Having once recovered judgment and satisfaction in respect of the goods, the plaintiff cannot recover again the same thing against somebody else. His further remedy is altogether gone, and his claim satisfied. By damages recovered is meant damages paid. (9)

SECTION III.

REMEDIES FOR THE WRONGFUL CONVERSION OF CHATTELS.

If a man's goods are taken by an act of trespass, and are subsequently sold by the trespasser and turned into money, the person thus deprived of his goods may bring an action for the trespass, or, waiving the trespass, he may sue for the conversion of the property, or, waiving the tort altogether, he may sue for money had and received. (r)

523. Recaption of goods wrongfully scized or stolen.-If A

(0) Frith v. Car land, 34 Law J., Ch. 301.

(p) Per Cur. Adams v. Broughton, Andr. 19; 6 M. & Gr. 640, n. Byles, J., Edmondson v. Nuttall, 34 Law J., C. P.

102.

(9) Brinsmead v. Harrison, L. R., 6 C. P. 584, overruling the dictum of Jervis, C. J., in Buckland v. Johnson, 15 ̊C. B. 163.

(r) Rodgers v. Maw, 15 M. & W. 448; Neat v. Harding, 6 Exch. 349.

has actual possession of a chattel, and B takes it from him. against his will, A may use as much force as is necessary to defend his right and enable him to retake the chattel; and if a chattel has been seized and carried away by a person who has no color of title to it, and the owner comes and demands it, and the trespasser refuses to give it up, the owner may use force sufficient to enable him to retake his property. (s) A person, therefore, who has been robbed is entitled to retake the stolen property wherever he can find it, provided the person in possession of it has not acquired a title to it by purchase in market overt, without notice of the robbery. He is not justified in committing an assault, or a breach of the peace in order to possess himself of the property, unless he finds it in the hands of the thief or the felonious receiver; but he must watch his opportunity for recovering possession, and if he is unable peaceably to retake it, he must pursue his remedy by writ of restitution, or by action. If there has been no alteration of the right of property in the thing stolen, by sale in market overt, he may at once demand it from the person in possession of it; and if the latter refuses to deliver it up to him on demand, he may bring his action; but he cannot, as we have seen, sue the thief himself, or the felonious receiver, until he has done his duty to society by prosecuting the felon.

The remedy, by way of action, for the recovery of the stolen property, or for damages for its detention or conversion, is confined, as we have seen, to those persons who had it in their possession at the time of the conviction of the thief or afterwards. (ante, p. 338.)

524. Of the plaintiffs in actions of trespass and conversion.The person in whom the general property in a personal chattel is vested may maintain an action of trespass for the taking or injuring of the chattel by a stranger, (t) although he has never had possession in fact, for the general property draws to it the right of possession. (u) A person entitled to the temporary possession of chattels for a particular purpose may also maintain an action for a trespass, or for the conversion of such chattels against any person who takes possession of

(s) Blades v. Higgs, 10 C. B., N. S. 713; 30 Law J., C. P. 347; 34 ibid, 286; Rex v. Mitton, 3 C. & P. 31.

(t) Beaty v. Gibbons, 16 East, 116. (u) Bro. Abr. TRESPASS, pl. 303, 346; Latch. 214.

them, without having any color of right so to do. (r) He may be entitled to sue the owner, if he has a right as against the latter to the temporary possession of the chattel, and the owner refuses to deliver it up' on demand. (y) An auctioneer has a special property as bailee in goods and chattels which are put into his possession for the purpose of sale, whether such goods and chattels be in his own rooms, or in the house of another person; but this is not the case with regard to fixtures. An employment to sell fixtures only authorizes him to sell the right of detaching and removing the fixtures; he has no possession of them as chattels, unless it was intended. that he should have possession of them after they were detached. Where, therefore, fixtures sold by an auctioneer were to be detached and removed by the purchaser, it was held that the auctioneer could not maintain an action for their wrongful removal. (2)

If a timber-tree growing on land demised to a tenant is cut down, the property in the tree is in the lessor, and he may maintain an action against any person who carries it away; (a) but the lessee has sufficient possession and special property in

him to enable him to maintain an action for the conversion of the timber. Property in the hands of very young children is in the constructive possession of the father and master of the house; but watches and books given by a parent to a schoolboy or apprentice, and taken away from home, are the property of the boy; and if they are taken away, detained, or converted by a wrong-doer, the boy, and not the parent, is the proper person to sue for the injury. (b)

If the owner of chattels has, by contract, parted with the possession of them for a certain time, and has only a reversionary interest, he cannot sue a wrong-doer for trespassing upon or converting the property, (c) unless the bailee, or person clothed with the right of possession, has, by some wrongful act of his own, determined the bailment, or the privity of the bailment has been destroyed by the act of a wrong-doer in taking the goods out of the possession of the bailee, and selling them, or converting them to his own use. (d) But although

(x) Burton v. Hughes, 9 Moore, 339; Sutton v. Buck, 2 Taunt. 307.

(y) Roberts v. Wyatt, 2 Taunt. 268.
(2) Davis v. Danks, 3 Exch 435.
(a) Berry v. Heard, Cro. Car. 242.

(b) Hunter v. Westbrook, 2 C. & P. 578. (c) Gordon v. Harper, 7 T. R. 13. Bradlee v. Copley, 1 C. B. 698.

(d) See post, ch. 9; Scott v. Newington, 1 M. & Rob. 252.