Action of trover for a carload of staves. The plea was the general issue with brief statement denying the plaintiff’s title and alleging the staves to be the property of one James F. Gerrity. The verdict was for the plaintiff, and the case is before the Law Court on the defendant’s motion for a new trial. Held;

An action of trover cannot be maintained without proof that the defendant did some positive wrongful act with the intention either to appropriate the property to himself, or to deprive the rightful owner of it, or to destroy it. Whiting v. Whiting, 111 Maine, 13, 16.

Considering the evidence presented by the record of this case in the most favorable light possible for the plaintiff, it does not justify a finding that the defendant converted the property sued for.

Motion overruled. New trial granted.