Usually, if something has in reality been taken from the plaintiff, the fact is obvious. But where the tort consists of a wrongful use of another's property, and especially if it appears that the use has not been exclusive of the owner's use, or that the property would not have been used by its owner in any event, the minus quantity is less easily seen. Such a case was Phillips v. Hom-fray,1 a suit in equity in which the defendants were charged, among other things, with the wrongful use of the plaintiff's underground roadway for the conveyance of coal and ironstone. One of the defendants, R. Fothergill by name, having died, it was contended that his executrix could not be held liable. The court so held, and after stating that "the true test to be applied in the present case is whether the plaintiff's claim against the deceased R. Fothergill . . . belongs to the category of actions ex delicto, or whether any form of action against the executors of the deceased, or the deceased man in his lifetime, can be based upon any implied contract or duty," said:

"The deceased, R. Fothergill, by carrying his coal and ironstone in secret over the Plaintiffs' roads took nothing from the Plaintiffs. The circumstances under which he used the road appear to us to negative the idea that he meant to pay for it. Nor have the assets of the deceased Defendant been necessarily swollen by what he has done. He saved his estate expense, but he did not bring into it any additional property or value belonging to another person."

11883, 24 Ch. D. 439, 460, 462. 442

But did not Fothergill take something of value from the plaintiff? The plaintiff, as owner of the road, was entitled to its uninterrupted and exclusive use. This "exclusive use" was something that belonged to him; it was something that he might dispose of, or actively exercise, or passively contemplate as his own. And every time that Fothergill used the road, whether such use interfered with the plaintiff's active employment of it or not, he temporarily deprived the plaintiff of his "exclusive use" just as truly as a converter of goods deprives the owner of his possession. It follows that to the extent of the value of Fothergill's use he was under an obligation to make restitution.

Another case in which the court appears to have been misled by the intangible character of the thing taken by the defendant is Schillinger v. United States.1 The plaintiffs held a patent for a mode or process of constructing concrete pavement with free joints. The defendant, the United States, against the protest of the patentee, awarded a contract for the construction of such a concrete pavement to one Cook, who wrongfully used the mode or process of the plaintiffs. An action for infringement was brought against the United States in the Court of Claims, and judgment demanded for the sum alleged to have been saved by the use of the patented process. The court decided that the action sounded in tort alone; that there was no contract express or implied on the part of the government for the use of the patent; and that consequently the case was not within the jurisdiction conferred by statute upon the court. Upon appeal to the United States Supreme Court, the decision was sustained, Mr. Justice Brewer saying:2

"It may be that the process or mode by which Cook, the contractor, constructed the pavement in the Capitol grounds was that described in and covered by the Schillinger patent. He may, therefore, have been an infringer by using that process or mode in the construction of the pavement, and liable to the claimants for the damages they have sustained in consequence thereof. It may be conceded also that the government, as having at least consented to the use by Cook of such process or method in the construction of the pavement, is also liable for damages as a joint tort-feasor. But what property of the claimants has the government appropriated ? It has, and uses, the pavement as completed in the Capitol grounds, but there is no pretense of a patent to the pavement as a completed structure. When a contractor, in the execution of his contract, uses any patented tool, machine, or process, and the government accepts the work done under such contract, can it be said to have appropriated and be in possession of any property of the patentee in such a sense that the patentee may waive the tort and sue on an implied promise ? The contractor may have profited by the use of the tool, machine, or process, but the work, as completed and enjoyed by the government, is the same as though done by a different and unpatented process, tool, or machine. Take for illustration, a patented hammer or trowel. If the contractor in driving nails or laying bricks use such patented tools, does any patent right pass into the building, and become a part of it, so that he who takes the building can be said to be in the possession and enjoyment of such patent right ? Even if it be conceded that Cook, in the doing of this work, used tar paper, or its equivalent, to separate the blocks of concrete, and thus finally completed a concrete pavement in detached blocks or sections, was such completed pavement any different from what it would have been if the separation between the blocks had been accomplished in some other way; and is the government now in possession or enjoyment of anything embraced within the patent? Do the facts, as stated in the petition or as found by the court, show anything more than a wrong done, and can this be adjudged other than a case 'sounding in tort' ?"

11894, 155 U. S. 163; 15 S. Ct. 85. See B. F. Avery & Sons v. McClure, 1909, 94 Miss. 172; 47 So. 901, 902; 22 L. R. A. (N. S.) 256.

2 At page 171.

Whether the case sounded in tort alone, or arose upon an implied contract, depends upon the construction of the phrase "contracts, express or implied" in the statute defining the jurisdiction of the Court of Claims. But if it be assumed, as the court appears to have assumed, that the phrase includes the obligation of a tort-feasor to make restitution, the conclusion reached by the court, it is respectfully submitted, is erroneous. The United States, it is true, did not deprive the patentee of any tangible or visible property; but it joined with the contractor in wrongfully taking from the patentee the "exclusive use" of his invention, and if the allegation of the petition as to the amount saved to the government by the use of the invention was true, the booty was not all left to the contractor.

In the New York Common Pleas case of McSorley v. Faulkner,1 which presented the same difficulty, a more satisfactory result was reached. The plaintiff had a telephone installed in his place of business under a contract by which he agreed to pay the telephone company for its use for a stated period. Subsequently he sold his business to the defendants and left the telephone in the premises. The defendants used the telephone constantly during the remainder of the period stipulated in the contract with the company. The plaintiff paid the company for the use of the phone during the defendants' occupancy, in accordance with his contract, and in this action was allowed to recover an equivalent sum from the defendants. Assuming that the use of the telephone by the defendants constituted a tort, the decision, it is submitted, is sound. The plaintiff was entitled to the exclusive use of the instrument, and although by leaving it in the premises he may have put it out of his power actively to employ it, he nevertheless retained the ownership of the exclusive use. Consequently, every time the defendants employed the instrument they took from the plaintiff his exclusive use, and to the extent of the value of such use they were under obligation to make restitution.