Next, suppose the act complained of is an exercise of dominion over the plaintiff's property, such as a merely technical trespass or a conversion.If the defendant thought that the property belonged to himself, there seems to be no abstract injustice in requiring him to know the limits of his own titles, or, if he thought that it belonged to another, in holding him bound to get proof of title before acting.Consider, too, what the defendant's liability amounts to, if the act, whether an entry upon land or a conversion of chattels, has been unattended by damage to the property, and the thing has come back to the hands of the true owner.The sum recovered is merely nominal, and the payment is nothing more than a formal acknowledgment of the owner's title; which, considering the effect of prescription and statutes of limitation upon repeated acts of dominion, is no more than right. All semblance of injustice disappears when the defendant is allowed to avoid the costs of an action by tender or otherwise.
But suppose the property has not come back to the hands of the true owner.If the thing remains in the hands of the defendant, it is clearly right that he should surrender it.And if instead of the thing itself he holds the proceeds of a sale, it is as reasonable to make him pay over its value in trover or assumpsit as it would have been to compel a surrender of the thing.But the question whether the defendant has subsequently paid over the proceeds of the sale of a chattel to a third person, cannot affect the rights of the true owner of the chattel.In the supposed case of an auctioneer, for instance, if he had paid the true owner, it would have been an answer to his bailor's claim.
If he has paid his bailor instead, he has paid one whom he was not bound to pay, and no general principle requires that this should be held to divest the plaintiff's right.
Another consideration affecting the argument that the law as to trespasses upon property establishes a general principle, is that the defendant's knowledge or ignorance of the plaintiff's title is likely to lie wholly in his own breast, and therefore hardly admits of satisfactory proof.Indeed, in many cases it cannot have been open to evidence at all at the time when the law was settled, before parties were permitted to testify.Accordingly, in Basely v.Clarkson, where the defence set up to an action of trespass quare clausum was that the defendant in mowing his own land involuntarily and by mistake mowed down some of the plaintiff's grass, the plaintiff had judgment on demurrer."For it appears the fact was voluntary, and his intention and knowledge are not traversable; they can't be known."This language suggests that it would be sufficient to explain the law of trespass upon property historically, without attempting to justify it.For it seems to be admitted that if the defendant's mistake could be proved it might be material. It will be noticed, further, that any general argument from the law of trespass upon laud to that governing trespass against the person is shown to be misleading by the law as to cattle.The owner is bound at his peril to keep them off his neighbor's premises, but he is not bound at his peril in all cases to keep them from his neighbor's person.
The objections to such a decision as supposed in the case of an auctioneer do not rest on the general theory of liability, but spring altogether from the special exigencies of commerce.It does not become unjust to hold a person liable for unauthorized intermeddling with another's property, until there arises the practical necessity for rapid dealing.But where this practical necessity exists, it is not surprising to find, and we do find, a different tendency in the law.The absolute protection of property, however natural to a primitive community more occupied in production than in exchange, is hardly consistent with the requirements of modern business.Even when the rules which we have been considering were established, the traffic of the public markets was governed by more liberal principles.On the continent of Europe it was long ago decided that the policy of protecting titles must yield to the policy of protecting trade.Casaregis held that the general principle nemo plus juris in alium transferre potest quam ipse habet must give way in mercantile transactions to possession vaut titre. In later times, as markets overt have lost their importance, the Factors' Acts and their successive amendments have tended more and more in the direction of adopting the Continental doctrine.
