By the Court.
Harrington, Judge.The essentials to the action of trover are property (general or special) in the plaintiff, and a right of possession to personal chattels, and a wrongful conversion by defendant. (2 Saund. Pl. & Ev., 1138 ; 1 Chitt. Pl., 164.) The taking, or rather finding, is not in issue, but the right of property and to the possession are; and the conversion, dependent upon these, is the gist of the action. For if the plaintiff have no right to the possession, there can be no unlawful conversion, as against him. The declaration necessarily avers the property and possession, and then adds the losing and finding, which are fictions not traversable, and the conversion, which is the gravamen. These may be denied, under the general issue, or a special defence denying either, may be specially pleaded. (1 Chitt, Pl., 491; spec, pl., 2; Chitt. Pl., 575.) Proof *448of property,' either general or special, usually draws the right of possession to it, unless the party have parted with it ‘ and proof of a wrongful taking or wrongful assumption of property in the goods, or of a refusal to give them up, is proof of a conversion.
Layton, for plaintiff. Cullen, for defendant.The plea here is, that the defendant took the sow in his close, damage feasant, and, drove and impounded her as he well might, which is the conversion complained of, and concludes with a verification and prayer of judgment in the usual form. It is objected to this, that it does not confess the conversion, nor traverse it in' the ancient, form of absque hoc, &c., and therefore does not answer the whole declaration ; but non allocatur, for the taking and impounding under a : claim of right is a conversion, unless it be justified. (2 Saund. Pl. & Ev., 1165; 9 Adolph. Ell., 861; Weeding vs. Aldridge.) It admits the property in plaintiff and the conversion, and justifies the latter. (2 Saund. Pl. & Ev., 1142.) It is a plea in confession and avoidance, and has the usual conclusion. (1 Chitty Pl., 497-8.)
The defence of taking damage feasant is as available in trover as in .trespass. If the party have the right so to take, the form of action chosen by another cannot vary that right. If sued in trespass it justifies the taking; if in trover, the conversion; unless the.plaintiff by his replication avoid it. Demurrer over-ruled.
Judgment of respondeat ouster.