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that if the first contract with warranty be broken off, the warranty will not extend to a subsequent sale.—Butterfield v. Burroughs, T. 1707. Salk. 211. cited in Hartop v. Hoare, 3 Atk. 44.
It has been said, that if a married man pretend to be single, and marry J. S. she may bring an action to recover damages for the injury done her by his deceit; (Anon. 35 Car. 2. Skin. 119.) but such an action will not lie for a man who is imposed upon by a married woman, because the conversation and contract of the wife will not bind the husband. (Cooper v. Witham, M. 1668. i Lev. 247.) And it may be doubted in the other case, being felony by 1 Jac. as it is a general rule, that where a trespass is by statute turned into felony, the trespass is merged; (Proctor v. Bury, Hil. 17 Geo. 2. C. B.) though in the case of Garford v. Richardson, T. 36 Car. 2. the court of K. B. upon a motion in arrest of judgment in such an action brought by a woman, gave judgment for the plaintiff, holding the action to be maintainable (u).
ing the horse unless he offer to return be a stranger to the original conhim before he bring the action. tract. This case was elaborately Caswell v. Coare, 2 Camp. 82. And argued, and on the argument a fur.. the Court of C. B. reduced a ver- ther question arose whether, admit. dict in which the keep had been in- ting all the facts stated to be true, cluded, contrary to the Chief Jus- this action could be maintained, and tice's direction. S. C. 1 Taunt. 566. Kenyon, C. J. Ashhurst, J. and Bul
A warranty of the soundness of a ler, J. held, that it could, but Grose, J. horse does not require a stamp, it held contra. being an agreement relating to the It is not necessary however to supsale of goods. Skrine v. Elmore, 2
Skrine v. Elmore, 2 port this action, that the defendant Camp. 407. and S. P. was ruled by should either himself derive an adLawrence, J. at Dedon assizes 1809, vantage from the deceit, or collude in Page v. Fry, ib.
with the person who did derive a be(a) The old cases on this subject nefit; for if there be fraud, i; e. an were confined to fraudulent asser- intention to deceive, this action will tions by the contracting parties only, lie, but not otherwise, therefore where and did not extend to the wilful a man incautiously represented cirmisrepresentations of strangers to cumstances to be within his own the contract, and they proceeded upon knowledge, which he could not have the breach of a promise either express known, but had good reason to be or implied, that the thing misrepre- lieve, it was held by Grose, Lawrence, sented was true, but a different doc- and Le Blanc, J. contra Kenyon, C. J. trine now prevails, and for the first that this action was not maintainable, time it was decided in Pasley v. Free- Haycraft v. Creasy, 2 East, 92. man, H. 1789. 3 T. Rep. 51. that A credit having been lodged with where a man, with a design to de. defendant by a foreign house, in favor ceive and defraud another, who of T. to a limited amount, on an exmakes enquiry of him, falsely re- press stipulation that goods should presents the matter enquired of, be previously lodged with defendant whereby an injury arises, this action to treble that amount, and plaintiff will lie against the party making having enquired of defendant the resuch false representation, though he. sponsibility of T. to which bc replied,
OF TROVER. (a) TROVER is a special action on the case, which one man may have against another, who hath in his possession any of his goods by delivery, finding or otherwise, or sells or makes use of them without his consent, or refuses to deliver them on demand ; and it is for recovery of damages to the value of the goods ; (b) and therefore the declaration ought
be knew nothing of him, except what but not in substance. Hambly v. he had heard of him from his cor. Trott, Cowp. 371, and supposes u respondent, but that a respectable loss by the plaintiff of his personal credit had been lodged with him, goods, and not only a finding of them which he held at the disposal of T. by defendant, but a tortious conver(not mentioning the previous stipula- sion of them to his defendant's use, tion) and that upon a view of all for that is the gist of the action. the circumstances which had come To maintain trover there are four to his knowledge plaintiff might exe- requisites : cute T.'s order with safety. It was
1. An absolute or special property held, that there was a material sup- in the plaintiffs (but not both) when pression of the truth on defendant's the defendant took and converted the part, and sufficient evidence for the goods. i. e. An absolute possession, jury to find fraud, which was the and an exclusive right of enjoyment gist of the action, though defendant in him till defeated by some act of added, when he made the represen. his own. (Per Luwrence, J. in Webb tation that he gave the advice with: v. Fox, 7 T. Rep. 398.) or that speout prejudice to himself. Verdict' cial property which a possessor has for plaintiff. Eyre v. Durnford, i subject to the claims of others. ArEast
, 318. So if A. fraudulently mory v. Delamirie, 1 Stra, 505. misrepresent the circumstances of B. 2. A right of possession in the in order to induce C. to give him goods. For though a property withcredit, and add, “ if he does not pay out possession, or possession without " for the goods I will.” The court property, will do, yet a right in both held, that this action might have been must concur. Vide Lord Cullen's maintained against A. even without Case, post, p. 33. Hudson v. Hudson, the addition of the promise. Hamar Latch. 214. and Gordon v. Harper, V. Alexander, 2 Bos. and Pull. N. R. 7 T. Rep. 9. 241.
3. That the goods were personal.
For trover lies not for any ihing af. (6) See the case of Il’ilbraham v. fixed to the freehold. Per Kenyon, Snow, 2 Saund. 47. where the learned in Webb v. Fox, sup. editor, Mr. Serjeant Williams, bas 4. That the defendant's conversion obliged us with a very explanatory was wrongful. For that it is which note on the nature, properties, and forms the gist of the action. Fuller requisites of this sort of action. v. Smith, 3 Salk. 366. and therefore,
(6) And it differs from detinue in. it is, that if a man finds the goods asmuch as detinue is brought for the which he had lost in the hands of thing itself, and trover for its value another who bought them in open in damages. Hartford v. Jones, 3 market, or at a fair, the property is Salk. 654.
altered, and he cannot recover them, Trover is a fictitious action in form i Inst. 498. i Danv. 23.
to contain convenient certainty in the description of the things, so that the jury may know what is meant thereby; but it need not contain so much certainty as an action of detinue, because that is for the recovery of the things themselves, and therefore trover for 20 ounces of cloves and mace has been holden good. (Hartford v. Jones, M. 10 W.3. Salk. 654.) So for a parcel of diamonds.—White v. Graham, H. 2 Geo. II. Str. 827.(a)
If a gentleman lodge jewels sealed up in a bag with a banker for safe [*33 ] custody only, and the banker break open the bag, and * pawn the jewels
to another, the gentleman may bring trover against the pawnee, for he shall not be answerable for the deceit of the banker, as he gave him no power to do that act in which the deceit lies ; and therefore it differs greatly from the case taken notice of in the last chapter, of the merchant answering for the deceit of the factor.-Hartop v. Hoare, E. 16 Geo. 2, 2 Stra. 1167. 1 Wils. 8. (b)
The conversion is the gist of the action, and the manner in which the goods came to the hands of the defendant is only inducement: and there. fore the plaintiff may declare upon a devenerunt ad manus generally, or specially per inventionem, (though the defendant came to the goods by delivery,) or that the defendant fraudulently at cards won money (of the plaintiff) from the wife of the plaintiff; and this being but inducement, need not be proved; but it is sufficient to prove property in himself, pose
(a) So for 400 pieces or ends of So for the title deeds of an estate, boards. Knight v. Barker, 2 Raym. Yea v. Field, 2 T. Rep. 708. 1219.
So for the exemplification of letSo for a piece of tepee. Radley ters patent. Jones v. Winckworth, v. Rudge, 2 Stra. 738.
So for old iron generally, but this
So for a suit of child-bed linen, So for a gelding on a count for a and a muff, good after verdict. horse. Grarely v. Ford, 2 Raym. Helyng v. Jennings, 1 Raym. 133, 1209.
So for a parcel of pack-cloths, So for a bond. Arnold v. Jeffery. Wrappers, and cords, and no objec, 3ón, Salk. 654.
tion to the uncertainty of the word So for a bill of exchange. Lucas "parcel" after judgment by default. v. Haynes, Salk. 130.
Bottomley v. Harrison, 2 Stra. 809. So for a bank bill against a 2 Raym. 1529.
Vide etiam Hartfinder, but not against his assigace. ford v. Jones, sup. S.P. Anon. 1 Salk. 126.
rb) Reported fully in 3 Atk. 44.
session to have been in the defendant, and a conversion by him.23. Fuller v. Smith, M. 8 W.8. 3 Salk. 566. (a)
(a) In trover at Nisi Prius, cor. Holt, C. J. A carpenter sent his ser. vant to work for hire at the Queen's yard; having been there some time, he refused to go again, on this the surveyor kept his tools, pretending an usage to detain tools to force workmen to continue till the Queen's work was done. A demand and refusal being proved at one time, and a tender and refusal after, Holt, C.J. said, the very denial of goods to him who has a right to demand them is an actual conversion, and not evi.. dence of it only, as hath been holden. For what is conversion but an assuming upon oneself the property and sight of disposing of another's goods, and he that takes upon himself to detain another's goods without cause, takes upon himself the right of disposing of them. So the taking and carrying away another's goods is a conversion. So if one come into my close, and take my horse, and ride him, it is a conversion. And here, if the plaintiff had received them upon tender, the action would lay, not withstanding upon the former conversion, and the having the goods after, would go only in mitigation of damages; (Baldwin v. Cole, 6 Mod. 212.) ergo a temporary conversion will support trover, though defendant do not claim the absolute property. This last case was recognized by Ellenborough, C. J. in M'Combie v. Davies, 6 East, 540, where it was held, that taking an assignment of tobacco in the king's warehouse, by way of pledge, from a broker who had purchased it in his own name for his principal, and refusing to deliver it to the principal after notice and demand by him (none other than he in whose name it is warehoused being able to take it) is a conversion.
But where defendant took plain tiff's boat to assist him in a state of danger, and the boat sunk, this is
not an illegal conversion. Drake v. Shorter, 4 Esp. N. P. C. 165.
So for taking five oxen by defend. ant's bailiff, who was dead, defendant insisted that plaintiff should have brought trespass, and not trover; sed per cur. He might bring either. Bishop v. Montague, Cro. Eliz. 824. Cro. Jac. 50. S. C.
So where a tenant for life pawned plate, it was held, that the pawnbroker could not hold it against the remainder-man, though he had no notice of the pawner's interest in it. Hoare v. Parker, 2 T. Rep. 376. .
Yet if goods be obtained from A. by fraud, and pawned to B. without notice, and A. prosecute the offender to conviction, and get possession of his goods, B. may maiutain trover for them. Parker v. Patrick, 5 T. R. 175. But in felony,where the owner's right of restitution being positively given by 21 H. 8. c. 11. trover will not lie. Horwood v. Smith, 2 T. R. 750.
Trover against a pawnbroker for goods pledged with him, which had been stolen. It appeared that the goods in question were stolen from the house of the plainuiff, and had bcen pawned by a woman named Brown, but that she had been tried for the felony and acquitted, on account of the absence of a material witness. Lord Ellenborough held, that the action well lay. Packer v. Gillies, 2 Camp. 336. (n.) Sed vido Parker v. Patrick, supra.
Trover will lie by ihe owner of a ship against a purchaser from the master, unless the vendee can shew urgent necessity for the sale. Hayman v. Molton, 5 Esp. N. P. C. 65.
In trover for a bill of sale of onefourth part of a ship, the plaintiff not being able to prove a demand and a refusal, prior to the commencement of his suit, offered to shew that defendant had actually sold the ship, and contended, that
In the declaration the conversion was laid to be on a day before the trover; wherefore a motion was made in arrest of judgment, but the declaration was holden to be good, for the Postea convertit is sufficient, and the viz. is void.—Tesmond v. Johnson, T. 1617. Cro. Jac. 428.
As to the property, a special one is sufficient, and therefore this action may be brought by a carrier or bailee; or by a finder, for that will enable him to keep the thing against all but the rightful owner.--Wilbraham v. Snow, H. 21 & 22 Car. 2. 1 Mod. 31. Armory v. Delamirie, H. 8 Geo. 1. 1 Str. 505.
A sheriff who has taken goods in execution may bring trover for them, if they were taken away before the sale.--Wilbraham v. Snow, H. 21 & 22 Car. 2. 2 Saund. 47. i Lev. 182. 1 Vent. 52. 1 Mod. 80. 2 Keb. 588.(a)
If an house be blown down and a stranger take away the timber, the lessee for life may bring trover; for he has a special property to make use of the same (as if he would rebuild) though the general property be in the reversioner.--Per Powel, J. on Midland Circuit, Salk. MSS.
A lord who seizes an estray or wreck, may, before the year and day expired, maintain trover against a stranger; for he has more than a possession, viz. a possession that will turn into a property.—Sir William Courtney's Case, C. B. Salk. MSS. Pye v. Pleydel, Berks. 1750. Per Clarke, Bar. S. P.
this being a conversion in fact, ren. before judgment, and from the time dered it unnecessary to prove a demand of the receipt on all such as had and refusal. And Lord Kenyon said, been received afterwards. Atkins v. that as the action was for the bill of Wheeler, 2 Bos. and Pull. N. R. 205. sale, and not for the ship itself, this "Trover lies not for goods. conwas no conversion, for by possibility demned by a foreign court having it might happen, that one person competent jurisdiction. Hughes v. should be entitled to the bill of sale, Cornelius, Ť. Raym. 473. Skin. 59. and another to the ship, and there. Sed secus, where a court has only a fore nonsuited the plaintiff. Lee v. limited jurisdiction. Papillon v. BuckWilkinson, Sittings after Hilary, 30' ner, Hardr. 478. Terry v. HuntingGeo. 3. MS. Ca.
don, ibid. 480. If A. indorse a bill drawn in his See further as to what amounts to favor, and accepted, and give it to a conversion and evidence thereof, post, B. to negociate, and B. give it to p. 44 (a.) n. (6.) C. who delivers it to D. without con- (a) So if a party pay money to sideration, A. may maintain trover redeem his goods from a wrongful against D. for it, though it be two distress for rent, he may maintain years over due. Goggerley v. Cuthbert, trover against the wrong-doer. Ship2 Bos. and Pull. N. R. 170. And in wick v. Blanchard, 6 T. R. 298. but trover on bills of exchange the ex- trover lies not for goods irregularly chequer chamber allowed interest sold under a distress. Wallace v. from the date of the final judgment King, I H. Bla. 13. on all such bills as had been received