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They maintained, with manifest sincerity, that Smythe's repudiation of the bullocks, and his subsequent levy of damages upon them as strangers and trespassers, gave themselves a certain right of trover, which prerogative they had duly developed into a title containing nine points of the law. Not equal to a pound-receipt, of course; but good enough for the track.
Again, in trover for the conversion of another's chattel, where the dominion exercised over it was of a slight and ambiguous nature, it has been said that the taking must be "with the intent of exercising an ownership over the chattel inconsistent with the real owner's right of possession." /1/ But this seems to be no more than a faint shadow of the doctrine explained with regard to larceny, and does not require any further or special discussion.
We fear that the studies of Blackstone, upon which the gentlemen who argue thus have entered in order to fit themselves for the legal and constitutional argument of the question, have confused their minds, and that they are misled by some fancied analogy between a tract and an action of trover, and conceive that the one, like the other, cannot be employed till after an actual conversion has taken place.
On reaching the place, they were told by the attorney they consulted that they could not make out larceny or theft against Gurley for taking the furs placed in his trust, but for their private redress must resort to a civil action of trover, or unlawful conversion of the common property. A criminal process for arson, or the burning of the camp, would probably be sustained.
But this is an exception commonly put on the ground that the judgment cannot change the property, as trespass for chattels or trover can. /3/ The rule that you cannot go into title in a possessory action presupposes great difficulty in the proof, the probatio diabolica of the Canon law, delays in the process, and importance of possession ad interim, all of which mark a stage of society which has long been passed.
Cuss 'em, the state would be a nation sight better sarved, if one o' these old rooks was sent out to try trover for a goose, and larceny for an old hat, to Nova Scotia, and you was sent for to take the ribbons o' the state coach here; hang me if it wouldn't. You know that, and feel your oats, too, as well as any one.
The action of trover for the necklace was tried before the Lord Chief Justice of the Common Pleas, who recommended the parties to submit to arbitration. In the mean time Cagliostro remained in prison for several weeks, till having procured bail, he was liberated.
The methods are of the class known colloquially among the vulgar-spoken American politicians as "pussyfooting" and "log-rolling"; but always with such circumstance of magnitude, authenticity and well-bred deference to precedent, as to give the resulting routine of subreption, trover and conversion, an air not only of benevolent consideration but of austere morality.
The circuit and supreme courts of the several states, though the slave cases which they tried were for the most part concerned only with such dry questions as detinue, trover, bailment, leases, inheritance and reversions, in which the personal quality of the negroes was largely ignored, occasionally rendered decisions of vivid human interest even where matters of mere property were nominally involved.
And the violent deeds of civil war and the ravages of invasion swept by like whirlwinds, throwing down the walls, razing the palaces and towers. And afterwards successive generations invaded the ruins, installed themselves in them by right of trover and conquest, turned them into cellars, store-places for forage, and stables for mules.
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