#### Francis Colton, plaintiff, *vs.*Edward S. Jones, defendant.

1. The introduction in a complaint, of an averment of a forcible entry upon the plaintiff’s premises, in the same statement with an allegation of an unlawful carrying away of property of his, under the present forms of proceeding in an action, does not prevent a recovery for the latter; although there be no evidence offered of such forcible entry.

2. Although an unlawful taking was never necessary to sustain an action for the conversion of goods, such as trover, but an unlawful detention was sufficient, and such conversion may be part of a series of successive wrongful acts of the defendant, beginning with a forcible entry on tho plaintiff’s premises; it is not only separable from the others as a separate cause of action, but may be joined with one for such forcible entry, in the same action, without being necessarily merged in it.

3. Trespass *de bonis asportatis*could always as a separate cause of action he joined with trespass *guare clausmn fregit,*and if the absence of force as a necessary ingredient in an action of *trover*prevented it from being joined with the latrer, the objection was entirely technical.

3. Such objection is overruled definitively in *Xovett*v. *Fell,*(op. *of VerplaneTc, sen.*22 *Vend.*369;) if it were not, it would be done away with by the 167th section of the Code of Procedure, which, among the classes of causes of action enumerated therein as capable of being joined, specifies those for “injuries with or without force.” Those words do not subdivide the class, but embrace all cases of *torts,*whether forcible or not.

4. The remedy for an omission to state separately, in a complaint, causes of action which may be joined, is not by demurrer, motion to strike out, or compel the plaintiff to elect between them; much less by an objection on the trial, but by a motion to make the complaint definite and certain, so that the defendant may know whether he has one or two causes of action against which to contend.

(Before Robertson, Ch. J., and Jones and McCunn, JJ.)

Heard June 9, 1868;

decided July —, 1868.

This was an action brought to recover damages for a "forcible entry on the plaintiffs premises and carrying away his goods.

It appeared on the trial, that the plaintiff hired the premises in question, on the 24th of September, 1866, from one Townsend, whose tenant he was, Townsend hired the *165room from the defendant’s mother, and was her tenant. His lease expired on the first day of December, 1866, when Townsend quit and surrendered the keys and possession to Mrs. Jones. The plaintiff testified that he hired from Townsend up to May 1st, which the latter denied, and testified that the plaintiff knew of the terms of his hiring from the defendant’s mother, and took the room from him, precisely as he did from her. The plaintiff, however, did not claim that he hired until May 1st, from either Mrs. Jones, or the defendant, or that either of them assented to Townsend’s letting the room to him to that date, but that after Townsend left, in answer to a suggestion of the plaintiff, that Townsend’s leaving would not prevent his remaining until May 1st, the defendant said, *“*if they got another occupant of the room, who was willing, it would be agreeable to him; but he would like to rent the room,” to which the plaintiff assented. The defendant rented the room subsequently, to another tenant. After the goods were removed from the room by the defendant, *(i. e.*after the alleged trespass for which the action was brought was committed,) the plaintiff demanded the goods from the defendant, upon which there was a conflict of evidence, as to whether the defendant absolutely refused to give them up, or refused to do so unless the storage on them was paid. The judge ruled and charged the jury that the only question was that of damages. The defendant’s counsel excepted to this ruling, and requested the court to charge the jury:

*Mrst.*That under the agreement between Jones and Townsend, (as testified to by Townsend,) the latter ought to leave at the end of any month; and if the jury should believe that Townsend notified the plaintiff of that agreement, when he underlet to him, and the former surrendered the premises, the rights of the plaintiff as his undertenant also ceased, and he thereafter had no right to the posses*166sion of the premises as undertenant of Townsend. The judge refused so to charge. The defendant excepted.

*Second.*That if the jury believed that Townsend surrendered the premises to his landlord, and the plaintiff was notified thereof, and thereupon the agreement testified to by the defendant, as to the storage and removal of the goods, was made, the defendant after letting the premises to another tenant, and after notice to the plaintiff to remove the goods, had a right himself to remove the goods without liability for damage unless he injured the goods in removal, and the defendant was not, nor was Mrs. Jones obliged to take any legal proceedings-to get possession. The court declined to so charge, and refused to submit any question to the jury, except that of damages. The defendant’s counsel took exception.

*Third.*That if the jury believed the plaintiff promised to pay storage, as testified to by the defendant, the latter had a right to detain the goods until the storage was paid, provided they also believed • that when the demand was made on the defendant, he stated, as testified by him, that the plaintiff could not have the goods until the storage was paid. ■ The court refused so to charge, and the defendant’s counsel took exception.

*Fourth.*That if the jury believed that subsequently the plaintiff agreed to pay $8 a month storage for the goods, as - testified by the defendant, the defendant’s mother, for whom he was acting, had a lien for that storage on the goods in question, and had a right to detain them until the storage was paid. Same ruling and exception.

*Fifth.*That if the defendant rightfully entered and removed the plaintiff’s goods from the premises in question, this action, in the form in which it was brought, could not be maintained even if the defendant subsequently wrongfully refused to let the plaintiff have his goods. The court refused so to charge, and the defendant’s coun*167eel excepted. Other facts appear in the opinion of the court. The judge charged the jury that the only question for them to consider was the amount of damages which the plaintiff was entitled to recover from the defendant. In determining that, they should be governed by the evidence before them, and not by any judgment of their own, as to the value of the goods. At the same time they had a right to look at all the testimony as affecting the credibility of the witnesses; and if satisfied that the evidence furnished on the part of the plaintiff was not credible, it was their duty to disregard it. The only evidence given by the defense as'to the value was that of Mr. Brown, who-did not seem to be acquainted with this specific kind of property, but had dealt in cots of a similar kind. They should take his testimony into consideration, and at the same time scrutinize the evidence of Mr. Colton, for the purpose of ascertaining whether his testimony was to be credited; and then render a verdict for such an amount as they should find to be the value of the property, at the time a demand was made by the plaintiff for its delivery.

The jury found a verdict for the plaintiff for $1153.

The court ordered all the exceptions to be heard in the first instance at the general term,' and that judgment be in the meantime suspended.

*Mr. Brinsmade,*for the plaintiff.

I. The defendant was in no way justified in entering the plaintiff’s premises and throwing out his goods, for non-payment of rent or holding over.

1. The defendant was a stranger, and himself testifies that he had no authority from the landlord to take this extraordinary mode of dispossessing a tenant. Bo rent had been demanded, and it did not appear when the same became due, or that possession had been demanded.

*1682. Even if the landlord had a.lien upon his tenant’s goods for the rent of the premises occupied, the removal of the goods destroyed it. *(Reed*v. *Darrow, 2 Edw. Ch.*412.)

3. Even if the defendant had the right to throw out the plaintiff’s goods into the street, or into the public hall of the b uilding, his subsequent taking of the goods upon his own premises, and his refusal to deliver possession, constitute a clear conversion, for which there can be no legal justification. He had no lien upon the goods for storage and labor, as claimed by him; for to constitute such a lien, there must be either an express agreement'of the parties, or it must be implied from their mode of dealing. *(Trust*v. *Pirsson,*1 *Hilt.*292.) *(a.)*A warehouseman has.no lien upon goods in his possession, unless deposited with him, or brought to him, in the regular course of his business. *(Rex*v. *Humphery, McClell. & Y.*173. *Naylor*v. *Mangles,*1 *Esp.*109.) (b.) A finder of a chattel has no lien upon it, for any expenses he may be at, in taking care of it for the owner. *(Nicholson*v. *Chapman,*2 *H. Black.*254.) Nor an agistor upon cattle which he dispastures. *(Jackson*v. *Cummins, 5 Mees. & W.*342.) Nor a stable keeper for the keep of a horse. *(Wallace*v. *Woodgate, 1 C.*& *P.*575.)

H. It is not claimed that there was any common law lien, but that there was an agreement, as to storage, between the parties. The court held that the conversation between the parties, as testified to by the defendant himself, did not amount to an agreement as to storage, so as to entitle the defendant to a lien therefor. If this conversation did not constitute an agreement, then the defendant is deprived of every justification for his refusal to deliver the goods on demand, and judgment must be rendered for the plaintiff on the verdict.

*169*A. R. Dyett,*for the defendant.

I. The court erred in refusing to charge the first request. The plaintiff’s tenure, as between him and the defendant, was precisely that of Townsend. Although the judge, in his charge, seemed to confine the question of damages to the value of the goods, he improperly refused to instruct the jury, as he should have done, that the plaintiff could not recover damages for trespass in removing them, and that the defendant’s justification in his answer was proved. The defendant had a right, after the expiration of the tenancy, to remove the plaintiff’s goods, without any legal proceedings, and the plaintiff could recover no damages therefor. *(Hyatt*v. *Wood,*4 *John.*150. *Ives*v. *Ives,*13 *id.*235. *Gault*v. *Jenkins,*12 *Wend.*488. *Estes*v. Kelsey, 8 *id.*555. *Jackson*v. *Morse,*16 *John.*197, *at p.*200.)

II. The court erred in refusing to charge the second request. *(Cases cited under last point.)*That introduced the element of the agreement between the plaintiff and defendant, testified to by the defendant, and not denied by the plaintiff, unconnected with the question of lien for storage. Under that agreement, (if the tenancy had not already ended,) the defendant’s tenancy ended as soon as the room was rented to a newr tenant. *(Niblo*v. *Post,*25 *Wend.*284, 285. *People*v. *Schackno,*48 *Barb.*551.) The same remark applies to this as to the last request. The evidence as to the value of the goods was conflicting, and it is impossible to say that the jury gave no damages for the trespass in *removing*the goods.

III. The judge erred in the ruling upon the second request, and in refusing to charge the third and fourth, requests. It was a question for the jury whether there was such an agreement. The defendant had sworn to it positively, and the plaintiff had not denied it. If that agreement was made, it was an agreement for storage, and *170gave the defendant’s mother a lien therefor. *(Schmidt*v. *Blood,*9 *Wend.*268.) The defendant, therefore, not only had the power, but it was his duty, as her agent, to refuse possession of the goods until the lien was discharged.

IV. The judge erred in refusing to charge the *'fifth*request. He, in effect, thereby decided that the plaintiff might recover for the conversion of the goods in question, *subsequent*to the removal of them, although the defendant was justified in such removal. This was erroneous. .

1. The action was what, before the Code, was trespass *quare clausum fregit.*The complaint professed to state but one cause of action. The statement in it of the conversion of the goods, is incident simply to the principal trespass by unlawful entry upon the plaintiff’s premises, and removing the goods, and dependent upon that trespass, and connected with it, as a part of *that*cause of action, and covers only the conversion incident to the carrying away of the goods. It is not an independent cause of action. When the principal trespass is justified, the whole cause of action fails.

2. The only issue before the jury was that principal trespass and its justification in the answer. That justification being proved, the defendant was entitled to a verdict. This was always the rule, and it was this rule alone which permitted, in a declaration in trespass, *q. c. f.*a statement of the conversion of personal property; for although trespass *q. c. f.*and trespass *d. b. a.*could be joined, yet a count in trespass could not be joined with a count m trover. (4 *Blackf.*181, 287. 3 *Term. R.*292. *Cooper v. Bissell, 16 John.*146. *Chitty’s Plead. tit. “ Joinder of Counts and precedents of declarations in trespass.*17 *Pick.*236. 10 *Georgia Rep.*384.) Mor can they now, *(Code,*§ 167,) because, (a.) They require different places of trial, (§ 123, *subd. 1, and*§ 125; (b.) do not' both belong *171to the same class; one is with force; the other is without force. ¡For one, trespass would be the proper remedy; for the other, trover; (c.) not separately stated; and this shows the pleader only intended one cause of action, and the form of the complaint deprived us of the right to demur, and of any objection to a want of separate statement. *(d.)*¡Nor did they arise out of the *same*transaction. The cause of action for which this verdict was rendered, was distinct from that in the complaint. The latter was a trespass *vi et armis,*and complete when the goods were removed by the defendant into the hall of the building, ¡February 14, (the day stated in the complaint.) The former was a conversion without force, and the subject of a count in trover before the Code, and arose, as testified to by the plaintiff, after this removal, and four days subsequent thereto, ¡February 18, when the plaintiff demanded the possession of the goods, *and had no existence until the demand and refusal.*These causes of action were, therefore, essentially distinct.

3. It was not a case of variance, but of failure of proof. *(Code,*§ 171, 2 *Comst.*500. *Pettit*v. *King, Selden’s Notes, Nos.*5, 36. 3 *E. D. Smith,*408. 1 *Hilt.*45. 10 *How.*321. 1 *Kern.*368. 1 *Abb.*237. 16 *N. Y. Rep.*250. 39 *Barb.*104. 21 *How.*289. 5 *Duer.*389. 3 *Bosw.*250. 7 *Abb.*193. 17 *Barb.*274. 28 *id.*441. 24 *How.*237. 19 *N. Y. Rep.*39. 33 *Barb.*246. 30 *id.*389. 4 *Duer,*318. 6 *Barb.*308, 309. 3 *Bosw.*456.) Nor could the court amend the complaint, either at or after the trial; (18 *How.*506; 10 *Abb.*372; 2 *Bosw.*248;) and the defect cannot now be amended, by “ conforming the pleading to the facts proved,” because the amendment would change “substantially the claim” of the plaintiff, within the proviso of section 173. (11 *How.*170. *Daguerre*v. *Orser,*3 *Abb.*86.)

V. A new trial should be granted ;.or, as this last point *172presents an insuperable objection to the plaintiff’s recovery, judgment should be rendered for the defendant.

Robertson, Ch. J.

The learned judge, before whom the issues of fact in this action were tried, charged the jury, “ that the only question for them to consider was the amount of damages, and that they should “ render a verdict for *. * the value of the property, at the time a demand was made by the plaintiff for its delivery.” He thus confined them to giving damages for the trespass charged in the complaint, of taking away and converting the *property*therein mentioned, and withdrew from their consideration all other matters charged in the complaint.

The counsel for the defendant requested the judge to charge the jury, “that, if the defendant rightfully entered and removed the plaintiff’s goods from the premises,” the “ *action in the form in which it*” was *brought,*could “not be maintained, even if the defendant subsequently wrongfully refused to let the plaintiff have his goods.” Which request was refused, and an exception taken to such refusal. Construing such request strictly, it would be answered by section 69 of the Code of Procedure, which provides that, after it took effect, there should be “but one *form*of action,” which should be “ denominated a civil action.” That provision destroyed that incubus upon the administration of substantial justice, called “the form of the action,” which was sustained by fine spun distinctions, and hemmed in suitors seeking to enforce or protect their rights, or redress wrongs done to them, with technicalities at every stage of their proceedings, and finally tripped them up, by a motion in arrest of judgment, even after a verdict in their favor. Assuming, however, that the objection was aimed at *the complaint,*and *not at the action,*the question is then presented,'whether the. plaintiff was, under the present mode *173of proceedings, to be prevented from recovering tbe value of his property, unlawfully carried away, because, although he established the fact, he had inserted the allegation that the defendant carried it away and converted it, in the .same statement with allegations of a forcible entry on the plaintiff’s premises, constituting a separate cause of action, which he could not prove.

It is assumed in the argument, against the plaintiffs’ right so to recover, that .the allegation of the taking away and converting the plaintiffs’ property, is what formerly would have been considered a statement of a cause of action in trover, as it was termed, a species of the form of action called *case,*applicable only to injuries without force. I think this is a mistake. In the old action- of *trover,*the subject of dispute was not the mere right of *possession;*it embraced the question of ownership also *;*so that the defendant could set up title in a stranger, as a defense, (Scher*merhorn*v. *Van Volkenburgh,*11 *John.*529,) for in it the plaintiff was obliged to admit in his declaration, that the defendant’s first possession was lawful, by being required to allege that he accidentally *found the goods*which he after-wards converted.' But in an action of *trespass*for unlawfully taking and carrying away goods, title in a third person only constituted a defense, when authority from him to the defendant was coupled with it. *(Aikin*v. *Buck,*1 *Wend.*469. *Demick*v. *Chapman,*11 *John.*132. *Cook*v. *Howard,*13 *id.*276.) So that the technical objection is not tenable, that formerly an allegation of taking and carrying away goods contained in a declaration in which a trespass *quare clausum fregit*was set forth, was only available to enhance the damages for such main cause of action and could not be introduced therein by way of a separate cause of action as a trespass *de bonis asportatis,*so as to have a separate recovery upon it if the forcible entry could not be proved. Both were trespasses, and could therefore always have *174been joined in the same action, and a recovery had for either alone. Perhaps where the mere conversion of the goods alone, without an unlawful taking, was set forth, the question of aggravating the damages of a forcible entry would be alone involved, but I do not find any precedents of such a form of pleading, or any decisions upon them. In the case of *Cooper*v. *Bissell,*(16 *John.*146,) there was a separate *count*in *trover,*and the court held that its joinder with one *in trespass*was fatal, even on error, at the same time expressing its regret that the rule was so. This doctrine was subsequently overturned in the case of *Lovett*v. *Pell, (22 Wend. 369, opinion of Verplanck, sen.*374.) Formerly, therefore, if was at most a mere question of misjoinder of actions and not of any such subordination of the injury caused by carrying away the goods to that caused by breaking into the place of their deposit, as that the former must share the fate of the latter in the same suit, whatever it was. Such technical obj ections to the misj oinder of actions are mostly done away with by the Code of Procedure, which (§ 167) enumerates seven classes of causes of action that may be joined. The- only restrictions are that they affect all the parties to the action, and do not require separate places of trial; and are, of course, to be separately stated. One of those classes (the third) is, “ Injuries, with or without force to person and property, or either.” The words, “ with or without force,” in the alternative in such section, being intended to include all kinds of wrongs, whether accompanied by force or not, formerly called *torts,*and not to subdivide the class. In other words, the section was intended to abolish the absurd rules so difficult to be stated and constantly shifting, by which an injured party was put to the expense and trouble of bringing two suits instead of one, against a wrongdoer, for two different violations of law to his injury. (See opinions and cases cited as to fluctuations and uncer*175tainty of rule, *Brown’s Actions at Law, p.*559; *Law Library, vol.*45.) So that even if the cause of action presented by the allegation in the present complaint, already alluded to, had been merely equivalent to a cause of action in *trover,*the plaintiff would not be prevented from recovering separately damages for it merely because it is joined in the same statement with a cause of action formerly the subject of an action of *trespass,*merely because their joinder was formerly prohibited.

As the taking forcibly and carrying away personal property, thus forms a good separate cause of action from that of unlawfully entering the plaintiff’s premises to get it, why should the insertion of the allegation of such taking and carrying away in the same statement with that of such unlawful entry, prevent the plaintiff from recovering damages for the former, even if the latter was not proved ? It certainly would not be merely because the conversion, which may accompany such seizing and carrying away, ever has been, or must be considered an indivisible part of the same act of trespass with such entry; for a defendant was always liable for the trespass of merely taking the goods, even if he immediately restored them. *(Price*v. *Helyar,*4 *Bing.*597.) Their conversion was admissible merely as an aggravation, as their restoration was, in mitigation, of damages. *(Bac. Abr. Trespass, E,*669, 674.) "Whereas an action for the conversion of the goods, such as one *in trover,*does not require any unlawful taking, but does a detention of the goods. Such conversion, therefore, forms no inseparable part of a series of trespasses, beginning with that of forcibly entering the plaintiff’s premises, and a claim for it is capable of being joined with one for such trespasses. What technical rule then is there left to compel the plaintiff to commence a new suit for the injury which he has proved in this, as *176he has alleged it in the complaint? For the objection must be entirely a technical one.

Ho one will venture to deny that, if the plaintiff had inserted before his allegation of the carrying away and converting his property, that he alleged it as *a separate cause of action*from the illegal entry on his premises, he could have recovered for it, even if he had failed in proving the latter. The defendant had notice by the complaint that the plaintiff meant to endeavor to prove it, and he was bound to be prepared to disprove it. Ho harm was done to him by the omission of the few words necessary to state a separation. The Code, it is true, provides that the several causes of action, which maybe joined, shall be separately stated, but the remedy is not by lying in wait until the trial to make the objection, nor by demurrer or motion to strike out either cause of action, or to compel the plaintiff to elect between them, because he has a right to join them; but by a motion to make the complaint definite and certain, so as to know whether the plaintiff means to rely on both or only one of the causes of action, and if so, which. *(Wood*v. Anthony, 9 *How.*78.) The plaintiff would then have had an opportunity to amend his complaint by inserting the magic words, which would divide the causes of action into two. The court has even a discretion on such a motion to let a complaint stand where it is more convenient that several causes of action should be included in one statement, so as to make them the quasi items of one claim, *(Adams*v. *Holley,*12 *How.*329,) and several cotemporaneous trespasses may equally be so considered, without losing all because one is not proved. At all events, it is to be determined before the trial; otherwise we are retrograding into a more narrow and technical system of forms of proceeding than existed before.

The first and second requests of the defendant to the *177learned judge to charge the jury upon certain points were rendered immaterial by confining the damages to the value of the property detained. The third request is founded wholly upon some supposed evidence of an agreement for storage. I think the learned judge was right in holding there was not enough evidence of such an agreement to go to the jury. The defendant saying to the plaintiff that they “would expect *rent”*for the place in question, and the latter’s replying that he would pay the same as he had been paying Mr. Townsend, if the former “ would let him *store*his goods ” there, and “ as soon as he (the defendant) found a tenant, he (the plaintiff) would move them out,” does not tend to establish an agreement for storage, but for *hiring ly the month,*at the pleasure of the defendant.

I do not find any errors in the decisions on the trial, and am therefore of opinion that the exceptions should be overruled and judgment given for the plaintiff on the verdict.

McCunn, J.

I fully concur in the opinion of the chief justice. The defendant was not justified in entering the plaintiff’s premises and taking possession of his goods for non-payment of rent; no rent was demanded, and it does not appear that any was due, but even if it were due, the landlord’s lien for it has long since been abolished. After the defendant had placed the goods-in the hall of the building, his subsequent bringing them upon his own premises, and refusal to deliver possession when demand was made, constituted a conversion for which there was no legal j ustification. To my mind this constituted a cause of action without proof of any trespass.

It is preposterous on the part of the defendant to contend that he had a lien for storage. Ho evidence to support such a claim can be found in the case. For the purpose of recovery in this action it was not necessary *178to prove a trespass, or a tortious taking. It is enough to prove possession by the-defendant and then a demand and refusal to deliver the goods, to sustain it.

I therefore concur with the chief justice in affirming the judgment.

Jones, J. dissented. (See his opinion, *post,*p. 669.)