
    LIFE ASSOCIATION VS. CATLIN.
    Trover will not lie to recover the amount of premiums on policies of life insurance received by defendant as agent of plaintiff for which he was to receive a percentage.
    Error to Common Pleas of Venango County. November Term, 1875.
    There was a verdict for plaintiff in an action for trover, but the Court granted a new trial in the following opinion per:
    Trunkey, P. J.
    The gist of the evidence is as follows : Catlin was Secretary of the plaintiff’s branch office, at Oil City, and also agent for the plaintiff. Among his duties were “to insure lives, collect premiums, collect renewals, make proper returns of all receipts that went through his hands, and all new policies that went into his hands.” He was to make monthly returns of his receipts, less his commissions, in New York drafts to E. F. Emory, in Buffalo, in accordance with his contract. In April, the indebtedness accrued, and he wrote or admitted to Emory, that ’ he owed the money, .and that it belonged to plaintiff. Emory believes this indebtedness had been accruing for several months, and that Catlin had been using receipts of the subsequent month in payment of returns for the prior, until finally, in April, he had not' enough to pay the acco unts for March.
    The facts being such without controversy, the defendant asked instruction that trover would not lie. Trover and conversion, a •species of action on the case, is a "remedy to recover the value of personal chattels wrongfully converted by another to his own use. It is for damages for the conversion of a specific thing. Less certainty is required in the description and tracing of the goods than in detinue, which is for the thing itself. The former may be sustained, where the latter could not be supported ; yet the general rule is clear, that to support trover, the plaintiff must have the right to some identical or specific goods. In the looseness of description, sometimes held sufficient in modern pleadings, a verdict may have been sustained when the declaration described the property as “certain current bank-bills representing in all one hundred and fifty dollars,” but I apprehend the evidence showed that the identical money in controversy belonged to the plaintiff. The law of the case has not been changed, and, until changed, trover will not lie for a balance of account for money had and received, even against a general insurance agent who was required to account and make payments at stated periods.
    The action lies for money. It has been maintained for a certain number of Spanish dollars which were shipped to the plaintiffs mixed with a large number. The package contained 4,718 ■dollars, 1,969 of which belonged to the plaintiffs, and all were .appropriated by defendant. ' Objection was made to the form of .action, because the 1,969 dollars were not separated from the ■large quantity. Held “there is no difficulty in that point.” The defendants have disposed of all the dollars; consequently he has disposed of those which belong to the plaintiff, and as all were of the same value, it cannot be questioned what particular dollars were theirs. If a man keeps all and has no right to a part, the action lies for that part which he wrongfully detains ; Jackson vs. Anderson, 4 Taunton 24.
    If a servant who had a general authority to receive and pay money for his master, give the money received from one to another who had no right, the master may maintain trover, because the possession of the servant was the possession of the master, and the servant had not such a special property in the money as enabled him to transfer the absolute property by gift >• Bacon’s Ab Tro. O. & E.
    In these, and like cases, the owner had the right to certain money, distinguished from money in general. The master has the right to the identical money which his servant receives from another. When the servant converts it to his own use, or gives it away, trover would lie against the servant. The money can be described and traced with sufficient certainty as the property of the owner. So when a debtor in anticipation of bankruptcy, by way of fraudulent preference, gives money to A, the assignee may recover in trover, for he has a right to the identical chattels or money. A did not acquire such right to the money as to owe therefor as a debt; the title vested in the assignee to the thing itself, and, unless delivered on demand, A would be liable in damages. Whenever coin or bank-notes can be identified as the property of the plaintiff', his case is within the rule lying at the foundation of the action.
    “The law has provided certain specific forms of action for particular cases, and it is important that they should be preserved-We ought, therefore, to look-with great jealousy to an innovation of this sort. The present count states that the defendant had and received-to the use of the plaintiff a certaim sum of money, to wit: ten shillings, to be paid to the plaintiff,but which the defendant converted to his own use. It is contended that this is a count in trover. Now the action of trover is only maintainable for specific property ; it will lie for so many pieces of gold or silver, and in that ease, a defendant can only redeem himself by tendering to the plaintiff the same specific pieces. But in this case he clearly might have done so by returning an equal sum of money. There is, therefore, not merely a want of certainty in the count, but it states that which is not the subject of trover at all;” Orton vs. Butler, 5 Barn. & Ald 652, 7 C. L. R. 224.
    The' facts, as proved by the plaintiff, clearly show that the •defendant had a right to pay a sum of money equal to that converted. Not even does the case stop there, for it was the understanding and requirement of the plaintiff’ that the defendant ■should account once a month, and remit by draft. ITe was not -expected nor required to hand over the identical legal tender or bank-notes received on account of the plaintiff; hence the •evidence shows that which is not the subject of an action of trover.
    The able and industrious counsel for plaintiff adduces no precedent for recovery of damages, in trover, for the balance of an account owing by an agent to his principal. So far as advised, such accounts have never been settled in this way. The action has not been used to recover on unadjusted account's, nor on .accounts stated, although, for many generations, agents have •often appropriated money received for the use of their principals.
    The absence of precedent tends to show the sense of the profession upon the question.
    Being satisfied of error in refusing the instruction requested by defendant, the rule must be made absolute.
    Hpon the second trial the Court directed a non suit. The Life Association then took a writ of error.
    
      James D. Hancock, Esq., for plaintiff in error
    argued that the conversion was tortious, and trover would lie. Trover lies for; money ; 2 Troubat and Haly’s Practice 49 ; 1 Chitty Pleading 147 Colebrook vs. Merrill, 5 Am. L. Reg. N. S. 703.
    
      Messrs McNair and Hancock, contra
    
    argued that where an agent states an account and acknowledges a balance, he is simply indebted for the amount of the balance; Clark vs. Moody, 1 American Leading Cases 694. The authorities cited by plaintiff in error do not sustain his position.
   The Supreme Court affirmed the judgment of the Common. Pleas on November 3, 1879, in the following opinion:

Per Curiam.

It is too clear for argument that trover was not the proper form of action in this case. It was for the amount of premiums on policies of life insurance, received by the defendant as an agent of the plaintiffs, for which he was to have a percentage. When he received tlie money he was simply liable to account and pay over the balance. There was no obligation to pay the-identical coin or note, or notes he had received. We adopt the opinion of the President of the Court below, on the motion for a new trial, as the opinion of this Court.

Judgment affirmed.  