Page:Federal Reporter, 1st Series, Volume 9.djvu/598

 SIMMONS V. SPENCEB. 583 �belongs to the plaintiff in the suit, and concerning which it is the duty of the defendant to turn over the very sum which he received to the plaintifp, the very money, the same dollars and the same bills, if he received. it in that form, that then, if he makes any other disposition of it, the action of trover may be maintained. Petit v. Bonjn, 1 Mo. 64, is a case in which the plaintiff brought an action in that form against parties who were conducting a lottery, elaiming that he had become entitled to a sum of money as the holder of a ticket in the lottery, and that they' had wrongfully refused td pay it over to him, and seeking in trover to recover the amount. The court say, in that instance, that if, in fact, any sum of money had been set apart to the plaintiff, — $100, I think, was the amount, — if it had been parcelled off by itseli; by the defendants, as his money, and afterwards they had taken thobe dollars and converted them to their own use, he might bring aii action of trover for the dollars so parcelled off; but that he could not, upon the general charge that so much money was due to him, and wrongfully detained by the defendants, maintain that action. His action must, in that case, be in the form of an action on contract, if he would recover at all. �That is the distinction that, I think, is recognized in all of the cases, and, apjflying it to the present case, it may be true that the defendants, the Bank of Leadville, as to the very bills, notes, or coin, if it was such, which they received for this property, may be liable in an action of trover, or an action founded in tort for the conversion of that money, if it be so alleged in the complaint. And if that money — the very same money — was paid over to Spencer, he also would be liable, and then and in that case they both might be joined in one action as tort-feasors. To illustrate, I will read a paragraph from Bliss on Code Pleadings : �" Under the Code, an action for the recovery of personal property will lie against one who has wrongfully parted with the possession of property, jointly with one in actual possession." Section 83. �And the same principle applies to trover : �"Thus, one who bas wrongfully pledged plate b'elonging to the plaintiff is liable to an action of detinue, jointly wi,th the person to whom'it had been pledged. So, where one bas fraudulently obtained a credit upon a bill of goods,and assigned them over for the beneflt of his creditors, the vendor, hav- ing the right to repudiate the sale and pursue the goods, may make both the purchaser and his assignee parties to an action for their possession." Id. �For this the case of Nichols v. Michael, 23 N. Y. 264, is cited. The principle declared is that where a party has the right to a specifie ��� �