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UNIVERSITY

OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW
LIBRARY



STAPEIXS AND SE^VEXJL






STAPEULS APsTD SEWOELJ.



SELECT CASES

AND

OTHER AUTHORITIES

ON THE LAW OF

PROPERTY



BY

EDWARD H. WARREN

Story Professor of Law in Harvard University



LANGDELL HALL, CAMBRIDGE
PUBLISHED BY THE EDITOR

1919






CePyRIGHT, 1915, BY EDWARD H. WA'IRFN



k

u.



PREFACE.

The professors in the Harvard Law School who conduct the
courses given to tirst-year students have, after conference, decided
to make material changes in most of these courses. A statement
concerning this will be found in the report of Dean Thayer for the
year 1913-1914.

These changes made it desirable that several new case books be

prepared. This book is one of such new case books. It is intended

for use in the course on property (both personal property and real

property) given to first-year students.

E. H. W.

Langdell Hall, Cambridge,
January, 1915.



.795345



TABLE OF CONTENTS.



BOOK I.

POSSESSION.
CHAPTER I.

The Nature of Possession:
Section 1. Taking Possession of Cliattels:

A. Tlie Power to Control 1

B. The Intent to Control 27

2. Taking Possession of Land 41

3. Possession Predicated upon Ownership 51

4. Separation of the Custody or Use from the Possession . 55

CHAPTER II.

Rights based upon Possession:
Section 1. Rights of a Person who has Possession by reason of a

Tenancy, Bailment, or Lawful Seizure 71

2. Rights of a Finder 82

3. Rights of a Mere Possessor 106

BOOK II.

SOME METHODS OF ACQUIRING TITLE TO
CHATTELS.

CHAPTER I.
A Bona Fide Purchase 123

CHAPTER II.
A Purchase at a Sale in Judicial Proceedings . . .130

CHAPTER III.
Statutes of Limitations 134

CHAPTER IV.
Accession 149



VI TABLE OF CONTENTS.

CHAPTER V.
Tortious Confusion 169

CHAPTER VI.
Satisfaction of Judgment 180

CHAPTER VII.
Gifts Inter Vivos 198

CHAPTER VIII.
Distinction between a Sale and a Bailment . . . .215

BOOK III.

LIENS AND PLEDGES.

CHAPTER I.

Acquisition and Enforcement:

A. Specific Liens 234

B. General Liens 253

C. Liens on Chattels Delivered Without the Authority of the Owner 260

D. Pledges 283

CHAPTER II. .

Loss by Surrender of Possession 285

CHAPTER III.
Assignability 299

BOOK IV.
CONVERSION.

CHAPTER I.

Acts constituting a Conversion:
Section 1. Interfering with the Plaintiff's Possession or Use of the
Chattel ■. . . .

A. Taking the Chattel out of the Plaintiff's Possession . 309

B. Obtaining the Chattel from the Plaintiff by Fraud . . 316

C. Leaving the Plaintiff in Possession, but Restraining

his Use of the Chattel 317

2. Withholding the Chattel from the Plaintiff .... 324



TABLE OF CONTENTS. Vll

Section 3. Altering the Condition of the Chattel 345

4. Disposing of the Chattel :

A. Sale, or Pledge, by a Bailee 349

B. Misdelivery by a Bailee 379

C. Delivery, by a Person having No Right in the Chat-

tel, to a Third Person 386

D. Riddance of the Possession 432

5. Using the Chattel 433

6. Possessing the Chattel under a Claim of Right . . .441

CHAPTER II.
Right of a Bailor to sue for a Conversion by a Stranger 448

CHAPTER III.

Right of the Converter to return the Chattel in Miti-
gation OF Damages 454

BOOK V.

INTRODUCTION TO THE LAW OF
CONVEYANCING

CHAPTER I.
'?^nure 459

CIL\PTER 11.

Estates or Tenancies:

A. In Fee Simple 467

B. In Fee Tail 470

C. For Life 472

D. For Years 475

E. From Year to Year 476

F. At Will 476

G. At Sufferance 476

CHAPTER HI.
Joint Tenants, Parceners, and Tenants in Common . 478

CHAPTER IV.

Reversions, Rights of Entry for Condition broken.
Vested and Contingent Remainders. Herein of the
Rule in Shelley's Case 487



Vin TABLE OF CONTENTS.

CHAPTER V.
Seisin and Disseisin 5Ci

CHAPTER VI.

Common Law Methods of Creating, or Transferring,
Estates . . 510

CHAPTER VII.
Rents 516

CHAPTER VIII.

The Statute of Uses
v'^ECTiON 1. Effect of the Statute upon the Methods of Creating, or

Transferring, Estates 524

2. Effect of the Statute upon the Limitation of Future

Interests 539

3. Unexecuted Uses 541

BOOK VL

RIGHTS INCIDENT TO THE OWNERSHIP OF
LAND, OR ESTATES THEREIN.

CHAPTER I.
The Land Itself 548

CHAPTER II.
Air 57r

CHAPTER III.
Water 591

CHAPTER IV.

Fixtures

Section 1. Incorporation of Chattels into Realty 633

2. Reconversion of Fixtures into Chattels 674

CHAPTER V.
Emblements 700

CHAPTER VI.
Waste 715



TABLE OF CONTENTS. IX

BOOK VII.

PROFITS, EASEMENTS, LICENSES, AND COVENANTS
RUNNING WITH THE LAND.

CHAPTER I.
Profits 751

CHAPTER n.
Easements 757

CHAPTER III.
Licenses ?88

CHAPTER IV.

Covenants Running with the Land:

Section 1. Where there is Tenure 810

2. Where there is No Tenure .... o o .... 833



TABLE OF CASES.



Acton V. Blundell 623

Adams v. Mizell 443

Alexander v. Southey 325

Allen V. Smith 2S8

Ames V. Palmer 451

Anderson v. Gouldberg .... 120

Anonymous 64

Armory v. Delamirie 82

Arnold v. Fee 774

.\stbury, ex parte 643

Atchison v. Peterson 005

Austerberry v. Oldham .... 837
Austin V. Hudson River R.R. Co. 533
Ayer v. Ritter 545

Bails V. Davis 500

Bakeman v. Talbot 784

Baldwin v. Cole 324

Bank v. Wolf 671

Barker v. Bates 93

Barkley v. Wilcox 618

Barnett v. Brandao 254

Bennett v. Morris 498

Be van v. Waters 235

Bewick v. Whitfield 749

Bickford v. Mattocks .... 203
Birmingham v. Allen .... 503

Blake v. Sanderson 813

Bloss V. Holman 53

Boardman v. Sill 335

Boatman v. Lasley 757

Boland v. McKowen 481

Bould V. Wynston 531

Brackett v. Goddard 701

Bridges v. Hawkesworth ... 89
Briasmead v. Harrison .... 180

Bristol V. Burt 320

British Empire Shipping Co., Lim-
ited V. Somes 219

Broadwood v. Granara .... 262

Brook, ex parte 687

Brumagim v. Bradshaw . . . .41

Bryan v. Wcems 145

Bryant v. Wardell 438

Bryant v. Ware 177

Burditt V. Hunt 424

liutler V. Frontier Telephone Co. . 575
Butler and Baker's Case . . . .213



Caldwell v. Tutt 293

Calkins v. Lockwood 26

Carpenter v. Dresser 456

Cartwright v. Green 27

Cass V. Higenbotham .... 342

Castner v. Riegel 769

Ceffarelli v. Landino 558

Challoner v. Robinson .... 517

Chalmers v. Smith 734

Chamberlain v. West .... 79

Chapin v. Freeland 134

Childress v. Wright 666

Clark V. Maloney S3

Clayton v. Corby 753

Clayton v. Le Roy 123

Clemence v. Steere 727

Clerk V. Clerk 483

Clifton V. Bury 580

Coclirane v. Moore 198

Cockson V. Cock 815

Coggs V. Bernard 283

Commonwealth v. Ryan ... 60

Congham v. King 828

Congleton v. Pattison .... 820

Cook V. Kane 278

Cook V. Stearns 792

Corbett v. Hill 570

Countess of Shrewsbury's Case . 741
Crosdale v. Lanigan 806

Damo V. Dame 667

Davis V. Easley 149

Dean v. Hogg 66

Dearbourn v. ITnion National

Bank 334

Denny v. Warren 15

Dever v. Hagerty ,507

De Vinne v. Rianliard .... 242
Dimock V. United States National

Bank 364

Doc V. Bateman 493

Doe V. Cole 511

Doe V. Passingham 544

Dougherty v. Stepp .548

Douglas V. Carpenter .... 353

Dragoo v. Cooper 143

Drake, ex parte 192

Durfee v. Jones 94



Xll



TABLE OF CASES.



Earle v. Arbogast 742

Ehrman v. Mayer 521

Elliott V. Bowman 21

Elwes V. Brigg Gas Co 84

England v. Cowley 317

English V. Key 518

Evans v. Higdon 20

Farkes v. Powell 435

Fay V. Brewer 749

First Universalist Society v. Bo-
land 469

Fisher v. Prince 454

Fitzgerald v. Burrill 383

Fitzgerald v. Elliott 57

Foley V. Wyeth 549

Folsom V. Barrett 340

Ford V. State 37

Fouldes V. Yv^illoughby . . . .310

Frome v. Dennis 439

Gaines v. Green Pond Mining Co. 717

Ghen v. Rich 7

Gibbs V. Estey 675

Gillespie v. Dew 51

Gilson V. Fisk 432

Goff V. Kilts 52

Goodrich v. Burbank .... 760

Gordon v. Harper 448

Goss V. Emerson 304

Great Southern Gas Co. v. Logan

Natural Gas Co 173

Green v. Dunn 325

Griffith V. Fowler 130

Gurley v. Armstead 422

Hall V. Boston Corporation . . . 379
Hamaker v. Blanchard .... 97

Hampton v. Brown 55

Hanna v. Phelps 338

Harrow School v. Alderton . . 726
Harvey v. Epes ...... 437

Hennessy v. Carmody .... 567

Hepburn v. Sewell 196

Higgins V. Flemington Water Co. 594
Hildebrand v. People .... 64

Hill V. Tupper 765

Hillebrand v. Nelson 652

Hiort V. Bott 419

Holbrook v. Chamberlain . . . 698

Holford V. Hatch 827

Holland v. Hodgson 639

Hollins V. Fowler 408

Hollister v. Goodale 10

Hook ;;. Bolton 662

Hooks V. Smith 434



Hopewell Mills v. Taunton Savings

Bank 648

Howell V. King 779

Hubbell V. East Cambridge Bank 644
Huddleston's Admr. v. Currin . 444

Hudmon v. Dubose 429

Huntington v. Blaisdell .... 13

Hurd V. Curtis 847

Hurlbut V. McKone 585

Hurst V. Gwennap 441

Hyde v. Noble 441

Idaho, The 176

Illinois Coal Co. v. Cobb . . .113

Jackson v. Alexander 529

Jackson v. Cummins .... 236

Johnson v. Stear 356

Johnson v. Whiton 467

Jones V. Tarleton 337

Keepers v. Fidelity Title and De-
posit Co 22

Kellogg V. Robinson 852

King V. Dunham 487

Kingsbury v. Collins 704

Kinnear v. Scenic Railways Co. . 653

KJruger v. Wilcox 253

Laverty v. Snethen 380

Lawrence v. Buck 82

Lawton v. Salmon 635

Leach v. Jay 505

Ledyard v. Hibbard 230

Lehigh R.R. Co. v. Bangor Ry.

Co 798

Lemmon v. Webb 572

Leonard v. Tidd 426

Leppla V. Mackey 823

Lipsky V. Borgmann 633

Lord Petre v. Heneage .... 439
Lucketts V. Townsend .... 283

Lutwich V. Mitton 526

Lyon V. Parker 833

Manders v. Williams 449

Marshall v. Mellon 715

Mason v. Smith 830

Matthews v. Ward 465

Matthews v. Ward's Lessee . .541

McAvoy V. Medina 104

McCombie v. Davies 351

McCormick i'. Horan .... 613
McCullough V. Broad Exchange

Co 781

MoPartland v. Read 309



TABLE OF CASES.



xin.



McPheters v. Page . . .
McWillie v. Van Vacter
Meeker v. East Orange . .
Melms V. Pabst Brewing Co.

Miller v. Hyde

Miller v. Race

Minshull v. Oakes . . .
Moore v. Townsliend .
]\Ioors V. Reading ....
Morse v. Aldrich ....
Mulgrave v. Ogden . . .
Mulliner v. Florence . . .



Nash I'. Mosher

Neal V. Jefferson

Nelson v. Ivsrson

Nichols V. Newsom

Nicholson v. Chapman . . . .
Nininger v. Norvrood . . . .
Northern Central Ry. Co. v. Can-
ton Co

Norton v. Woodruff



Padelford v. Padelford . . .

Page V. Fowler

Parker v. Godin

Parks V. Bishop

Pease v. Smith ......

Penhallow v. Dwight . . .
Pennsylvania R.R. Co. v. Miller
People V. Elk River Co. . . .

Phelps V. Ayers

Pibus V. Mitford

Pickering v. ]\Ioore ....

Pierson v. Post

Pitts V. Lancaster Mills . . .

Plume V. Sev,-ard

Pulcifer v. Page

Queen v. Ashwell ....



Radey v. McCurdy

Ramsay v. Marsh

Ramsby v. Beezley

Randolph v. Doss

Reeves v. Capper

Regina v. Riley

Rerick v. Kern

Rice V. Boston & Worcester R.R.

Corporation

Rice V. Nixon

Richardson v. Atkinson . . . ,

Ricketts v. Dorrcl

Rigden v. Vallier

Rix V. Silknitter

Robins v. Gray ...'...



345
206
627
728
183
125
825
735
295
840
347
349

303

829
427
331
243
615

677
215

723
713
401
777
386
700
592
598
685
514
169
1
597
49
166

32

695

547
390
506
294
29
802

495
225
345
167
479
17
264



Robinson v. Baker 273

Robinson v. Walter 260

Roche V. Ullman 843

Roe r. Tranmer 534

Rogers v. Huie 399

Ruggles V. Walker 299

Rushforth r. Hadfield .... 256
Ryan v. ^lonaghan 515

Sanders v. Chandler 710

Scarf e v. Morgan 335

Schuitz V. Byers 552

Seebaum v. Flandy 285

Sexauer v. Wilson 855

Sexton V. Graham 22S

Shaber v. St. Paul Water Co. . . 834

Silsbury v. McCoon 157

Simmons v. Lillystone .... 347

Simpkins v. Rogers 706

Singer Mfg. Co. v. King . . .327
Singer Mfg. Co. v. London Ry. Co. 270

Skinner v. Upshaw 234

Smith V. Cooley 751

Smith V. St. Michael, Cambridge . 69
Smith V. Thackerah . . . . . 561

Smyth V. Carter 727

Snow V. Parsons 001

South Australian Insurance Co. v.

Randell 217

South Staffordshire Water Co. v.

Sharman 91

S packman v. Foster 445

Spencer's Case 812

Spooner v. Holmes 401

Sproul V. Sloan 371

Squire & Co. v. Portland . . . 681

State V. Martin 659

State V. Schingen 59

State V. Shaw . 5

Steinman i;. Wilkins . . . . .239

Stephens v. Elwa'.l 421

Stephenson v. Little 174

Sterling, ex parte ...... 256

Stevens v. Curtis 432

Stevens v. Eames 349

Stockwell v. Phelps 711

Stultz V. Dickey 709

Sturges V. Bridgman 581

Symson v. Turner 544

Talty V. Freedman's Trust Co. . 374

Tapscott V. Col)bs 106

Tenbrook v. Brown 204

Thomas v. Sorrell 7SS

Thomes v. Moody 712

Thompson v. Lacy 234



XIV



TABLE OF STATUTES.



Thompson v. Thompson . . .531
Thorogood v. Robinson . . . .330
Thurston v. Blauchard .... 310

Todd I'. Jackson Ill

Tolles V. Winton 636

Traylor v. Horrall 388

Tyler v. Mason 591

Tyrrel's Case 541

Tyson v. Post 674

Van Rensselaer v. Ball .... 492
Van Rensselaer v. Hays .... 483

Varney u. Curtis 392

Vernon v. Smith 817

Vilas V. Mason 322

Vinal V. Spcftord 289

Wall V. Hinds 828

Wata-iss v. First National Bank . 689
Webb V. Portland Mfg. Co. . . 609

Weeks v. Hackett 99

Wentworth v. Day 245

Wetherbee v. Green 150

Wheelwright v. Depeyster . . . 124



Whipple V. Dutton 361

White r. Allen 80

White V. Wagner 744

Whitmarsh v. Cutting .... 708

Wilbraham v. Snow 81

Wiiford's Estate, in re ... . 484

Wilkinson v. Wilkinson .... 723

Williams v. Earle 815

Williams v. James 779

Williams v. Lambe 474

Willoughby i'. Lawrence . . . 763

Wilson V. Anderton 326

Wilson V. Guyton 248

Winchester i'. City of Stevens Point 118

Winkfield, The 72

Winji r. State 490

Wood V. Leadbitter 788

Wood V. Manley 796

Woodliff V. Drury 539

Woodman v. Hubbard .... 433



Young V. Hichens
Zimmerman i'. SInreeve



4
71



TABLE OF STATUTES.



18 Edw. I, c. 1 (Quia Emptores) 462

13 Edw. I, c. 1 (De Bonis) 470

27 Hen. VIII, c. 10 (Uses) 524

27 Hen. VIU, c. 16 (Enrolments) 525

32 Hen. VIII, c. 34 (Covenants Running with the Land) .... 81C



OASES ON PROPERTY.



BOOK I.
POSSESSION.



CHAPTER I.
THE NATURE OF POSSESSION.



SECTION 1.

TAKING POSSESSION OF CHATTELS.

A. The Power to Control.



PIERSON V. POST.

3 Caines (N.Y.) 175. 1805.

This was an action of trespass on the case commenced in a jus-
tice's court, by the present defendant against the now plaintiff. The
declaration stated, that Post, being in possession of certain dogs and
hounds under his command, did ''upon a certain wild and uninhab-
ited, unpossessed and waste land, called the beach, find and start one
of those noxious beasts called a fox," and whilst there hunting,
chasing and pursuing the same with his dogs and hounds, and when
in view thereof, Pierson, well knowing the fox was so hunted and
pursued, did in the sight of Post, to prevent his catching the same,
kill and carry it off. A verdict ha\dng been rendered for the plaintiff
below, the defendant there sued out a certiorari, and now assigned
for error, that the declaration and the matters therein contained
were not sufficient in law to maintain an action.

Tompkins, J. This cause comes before us on a return to a certi-
orari directed to one of the justices of Queen's County.

The question submitted by the counsel in this cause for our deter-
mination is, whether Lodowick Post, by the pursuit with his hounds
in the manner alleged in his declaration, acquired such a right to, or
property in the fox, as will sustain an action against Pierson for
killing and taking him away?

The cause was argued with much ability by the counsel on both
sides, and presents for our decision a novel and nice question. It is



2 PIERSON V. POST. [chap. I.

admitted, that a fox is an animal ferce naturce, and that property in
such animals is acquired by occupancy only. These admissions nar-
row the discussion to the simple question of what acts amount to
occupancy, applied to acquiring right to wild animals.

If we have recourse to the ancient writers upon general principles
of law, the judgment below is ob\'iously erroneous. Justinian's In-
stitutes, lib. 2, tit. I, sect. 13, and Fleta, lib. iii, c. ii, page 175, adopt the
principle, that pursuit alone, vests no property or right in the hunts-
man ; and that even pursuit accompanied vnih. wounding, is equally
ineffectual for that purpose, unless the animal be actually taken.
The same principle is recognised by Bradon, \\h. ii, c. i, page 8.

Pujfendorf, lib. iv, c. 6, sec. 2, § 10, defines occupancy of beasts
ferce naturce, to be the actual corporal possession of them, and Byn-
kershoek is cited as coinciding in this definition. It is indeed ■\^'ith
hesitation that Puffendorf affirms that a wild beast mortally
wounded, or greatly maimed, cannot be fairly intercepted by an-
other, whilst the pursuit of the person inflicting the wound continues.
The foregoing authorities are decisive to shew that mere pursuit
gave Post no legal right to the fox, but that lie became the property
of Pierson, who intercepted and killed him.

It therefore only remains to inquire, whether there are any con-
trary principles, or authorities, to be found in other books, which
ought to induce a different decision. JMost of the cases which have
occurred in England, relating to property in wild anim.als, have either
been discussed and decided upon the principles of their positive stat-
ute regulations, or have arisen between the huntsm.an and the owner
of the land upon which beasts ferce naturce have been apprehended;
the former claiming them b}' title of occupancy, and the latter ratione
soli. Little satisfactory aid can, therefore, be derived from the Eng-
lish reporters.

Barbeyrac, in his notes on Puffendorf , does not accede to the defi-
nition of occupancy by the latter, but, on the contrary, affirms that
actual l^odily seizure is not, in all cases, necessary to constitute pos-
session of wild animals. He does not, however, chscrihe the acts
which, according to his ideas, vdW amount to an appropriation cf
such animals to private use, so as to exclude the claims of all other
persons, l^y title of occupancy, to the same animals; and he is far
from averring that pursuit alone is sufficient for that purpose. To a
certain extent, and as far as Barbeyrac appears to me to go, his ob-
jections to Puffendorf's definition of occupancy are reasonable and
correct. That is to say, that actual bodily seizure is not indispens-
able to acquire right to or possession of wild beasts; but that, on the
contrary, the mortal wounding of such beasts, by one not abandon-
ing his pursuit, may, with the utmost propriety, be deemed posses-
sion of him; since thereby, the pursuer manifests an unequivocal
intention, of appropriating the animal to his individual use, has de-



SECT. I.] PIERSON V. POST. 8

prived him of his natural liberty, and brought him within his certain
control. So, also, encompassing and securing such animals with nets
and toils, or otherwise intercepting them, so as to deprive them of
their natural liberty, and render escape impossible, may justly be
deemed to give possession of them to those persons who, by their
industry and labor, have used such means of apprehending them.
Barbeyrac seems to have adopted, and had in view in his notes, the
more accurate opinion of Grotius, with respect to occupancy. That
celebrated author, lib. ii, c. 8, sect. 3, page 309, speaking of occu-
pancy, proceeds thus, " Requiritur autem corporalis qucedarii possessio
ad dominium adipiscendum ; atque ideo, vulnerasse non sufficit." But
in the following section he explains and qualifies this definition of
occupancy: "Sed possessio ilia potest non solis manibus, sed instru-
mentis, ut decipidis, retihus, laqueis dum quo adsint : primum ut ipsa
instrumenta sint in nostra potestate, deinde ut fera, ita inclusa sit, ut
exire inde yiequeat." This qualification embraces the full extent of
BarbejTac's objection to Puffendorf 's definition, and allows as great
a latitude to acquiring property by occupancy, as can reasonably be
inferred from the words or ideas expressed by Barbe\Tac in his notes.
The case now under consideration is one of mere pursuit, and presents
no circumstances or acts which can bring it within the definition of
occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon
the subject.

The case cited from 11 Mod. 74-130, I think clearly distinguish-
able from the present, inasmuch as there the action was for mali-
ciously hindering and disturbing the plaintiff in the exercise and en-
joyment of a private franchise; and in the report of the same case,
3 Salk. 9, Holt, Chief Justice, states, that the ducks were in the
plaijLtiff'A decoy pond and so in his possession, from which it is obvi-
ous the court laid much stress in their opinioUj upon the plaintiff's
possession of the ducks, iCQUo^Siii- ^

I am the more readily inclined to confine possession or occupancy
of beasts fera naiurce within the limits prescribed by the learned au-
thors above cited, for the sake of certainty, and preserving peace
and order in society. If the first seeing, starting or pursuing such
animals, without having so wounded, circumvented or ensnared
them, so as to deprive them of their natural liberty, and subject them
to the control of their pursuer, should afford the basis of actions
against others for intercepting and killing them, it would prove a
fertile source of quarrels and litigation.

However uncourteous or unkind the conduct of Pierson towards
Post, in this instance, may have been, yet his act was productive of
no injury or damage, for which a legal remedy can be applied. I am
of opinion the judgment below was erroneous, and ought to be re-
versed.^

' LivixGSTON, J., dolivcred a dissenting opinion.



4 TOTJNG V. mCHENS, [cHAP. I.

YOUNG V. HICHENS.

6 Q. B. 606. 1844.

Trespass. The first count charged that defendant, with force,
etc., seized and disturbed a fishing sean and net of plaintiff, throv^Ti
into the sea for fish, wherein the plaintiif had taken and inclosed, and
then held inclosed in his own possession, a large number of fi.sh, to
wit, etc., and that defendant threw another fishing sean and net
within and upon the plaintiff's sean and net, and for a long time, to
wit, etc., prevented plaintiff from taking the fish, so taken and in-
closed, out of his sean and net, as he could othermse have done;
and drove, etc., the fish; whereby part of them cUed, part were in-
jured, and part escaped; and the sean and net was injured. Second
count, that defendant with force &c., seized, took, and converted
fish of plaintiff.

Pleas. 1. Not guilt3^ Issue thereon.

2. To the first count, as to preventing plaintiff from taking the
fish alleged to be inclosed in his possession, and driving, etc., the
said fish: that the fish were not plaintiff's fish, and he was not pos-
sessed of them, in manner, et<;.; conclusion to the country. Issue
thereon.

3. To the second count, that the fish were not the plaintiff's fish,
in manner, etc. : conclusion to the country. Issue thereon.

On the trial before Atcherley, Serjt., at the Cornwall Spring As-
sizes, 1843, it appeared that the plaintiff had drawn his net partially
round the fish in question, leaving a space of about seven fathoms
open, which he was about to close '\^dth a stop net; that two boats,
belonging to the plaintiff, were stationed at the opening, and splash-
ing the water about, for the purpose of terrifying the fish from pass-
ing through the opening, and that, at this time, the defendant rowed
his boat up to the opening, and the disturbance, and taking of the
fish complained of, took place. The learned Sergeant left to the jury
the question of fact whether the fish were at that time in the plain-
tiff's possession, and also other questions of fact on the other issues.
Verdict for plaintiff on all the issues, with damages separately as-
sessed, namely, 568Z. for the value of the fish, and IZ. for the dam-
age done to the net.

Lord Denman, C. J. It does appear almost certain that the plain
tiff would have had possession of the fish but for the act of the de
fendant : l^ut it is quite certain that he had not possession. Whatever
interpretation may be put upon such terms as "custody" and "pos-
session," the question will be whether any custody or possession has
been obtained here. I think it is impossible to say that it had, until
the party had actual power over the fish. It may be that the defend-
ant acted unjustifiably in preventing the plaintiff from obtaining



SECT. I.] STATE V, SHAW. 5

such power : but that would only shew a "SNTongful act, for which he