By stat. 8 & 9 W. 3. c. 11. s. 4. "In all actions of trespass, wherein, at the trial of the cause, it shall appear and be certified by the judge, under his hand, upon the back of the record, that the trespass upon which any defendant shall be found guilty, was wilful and malicious, the plaintiff shall recover, not only his damages, but his full costs (26).' In Reynold v. Edwards, 6 T. R. 11. it was holden, that if the trespass was committed after notice, the judge was bound to certify that the trespass was wilful and malicious. But in Good v. Watkins, 3 East, 499. it was adjudged, that although the trespass were committed after notice, yet the statute meant to leave it to the discretion of the judge to certify or not, according as it appeared to him at the trial, upon view of all the circumstances proved, that the trespass was or was not wilful and malicious. i See Ford v. Parr, 2 Wils. 21. (26) See ante, p. 40, 41. CHAP. XXXIX. TROVER. 1. Of the Nature and Foundation of the Action of Trover, and in what Cases such Action may be maintained. II. By whom and against whom Trover may be maintained. III. The Declaration-Plea-Defence, and herein of the Doctrine of Liens-Evidence-Of staying the Proceedings-Costs-Judgment. 1. Of the Nature and. Foundation of the Action of Trover, and in what Cases such Action may be maintained. . DEFINITION-The action of trover is a special actions upon the case, which may be maintained by any person who has either an absolute or special property in goods, for, recovering the value of such goods, against another, who having, or being supposed to have, obtained possession of such goods by lawful means, has wrongfully converted them to his own use. In order to maintain an action of trover, it is necessary that it should appear, 1. That the plaintiff had either an absolute or a special property in the goods which are the subject of the action, at the time, when they came into the possession of the defen dant who has converted them: 2. That the plaintiff had also the right of possession in the goods: 3. That personal goods constitute the subject matter of the action: 4. That the defendant has been guilty of a wrongful cou version. 1. Absolute Property.-It must appear, that the plaintiff had a property, either absolute or special, in the goods which are the subject of the action, at the time. when they came into the possession of the defendant who converted them; but it is not necessary to shew that the plaintiff had both an absolute and special property; either the one or the other is sufficient. Absolute property is where one, having the possession of goods, has also the exclusive right to enjoy them, and which can only be defeated by his own act. Trover was brought by a tenant in tail, expectant on the determination of an estate for life, without impeachment of waste, for timber which grew upon, and had been se vered from the estate, and was in the possession of the defendant. It was holden, that the plaintiff could not recover; because an action of trover must be founded on the property of the plaintiff, and in this case the plaintiff had not any property in the timber; for a tenant for life, without impeachment of waste, has a right to the trees at the moment when they are cut down. In like manner tenant in tail, after possibility of issue extinct, is entitled to timber when cut®. So trustees of an estate pur autre vie, cannot maintain trover for trees felled upon the estate; for although they have a special property in the trees while standing, yet that property ceases when they are cut down, and the trees then belong to the owner of the inheritance. In Berry v. Heard, Palm. 327. and Cro. Car. 242. it was for a long time in great doubt, whether the landlord had such a possession of timber cut down during the continuance of a lease, on which he could maintain trover; but it was finally determined that he had; because the interest of the lessee in the timber remained no longer than while it was growing on the land demised, and determined instantly upon the severance. The owner of goods stolen, prosecuting the felon to con a Per Lord Mansfield C. J. 1 T. R. 56. f Blaker v. Anscombe, 1 Bos. & Pul. b Per Lawrence J. 7 T. R. 398. e Ibid. d Pyne v. Dor, 1 T.R. 55. e Williams v. Williams, 19 East, 209. VOL. II. N. R. 25. g Cited by Lawrence J. in Gordon v. Harper, 7 T. R. 13. viction, cannot recover the value of them in trover from a person who has purchased the goods in market overt, and sold them again before the conviction, notwithstanding the owner gave the purchaser notice of the robbery, while the goods were in his possession; for, in order to maintain trover, the plaintiff must prove that the goods were his property, and that while they were so, they came into the possession of the defendant, who converted them to his own use. If a tradesman order goods to be sent by a carrier', though he does not name any particular carrier, the moment the goods are delivered to the carrier, such delivery operates as a delivery to the purchaser, and the whole property is immediately vested in him; and if any accident should happen to the goods, it will be at the risk of the purchaser (1). So if A. order goods to be transmitted to him by a particular carrier, though upon condition to return them again, if he dislike them; yet upon delivery to the carrier the property is vested in A. and he will be bound to pay the price to the vendor, and consequently the vendor cannot bring trover against the carrier, if the carrier convert the goods to his own use (2). If A. order a tradesman to send him goods by a hoyman', and the tradesman send the goods, by a porter, to the house, where the hoyman resides, when in town, and the porter, not finding him, leave the goods with the landlord, A. cannot maintain trover against the landlord, for the property never vested in A., but remained in the tradesman; but if the person to whom the goods were delivered had been a servant to the hoyman, and entrusted by him to receive the goods, A. might have maintained trover; for, by such delivery, the property would have vested in him, and therefore in h Horwood v. Smith, 2 T. R. 750. 1 Colston v. Woolston, T. 1 Ann. (1) The only exception to the purchaser's right over the goods is, that the vendor, in case of the purchaser becoming insolvent, may stop them in transitu. (2) N. Trover will not lie against a carrier for the mere non-dc-. livery of goods. See ante, p. 377. such case the tradesman could not have brought trover against the hoyman. The property of goods passes by the endorsement and delivery of the bill of lading, by the consignee, to another, bona fide, for a valuable consideration, and without collusion with the consignee", although the endorsee knew at the time that the consignor had not received payment in money for his goods, but had taken the consignee's acceptances payable at a future day, not then arrived. If goods are sold, to be paid for within a limited time,, and if not removed at the end of that time, that warehouse rent shall be paid for them, the property in the goods vests absolutely in the purchaser, from the moment of the sale. If a person contracts with another for the purchase of a chattel, e. g. a barge, which is not in existence at the time of the contract, although the full value of the article contracted for is paid in advance, and the order is proceeded on, yet the purchaser does not acquire any property in the article, until it is finished and delivered to him. After earnest given, the vendor cannot sell the goods to another, without a default in the vendee; and, therefore, if the vendee do not come and pay for, and take away the goods, the vendor ought to go and request him; and then if he do not come and pay for and take away the goods in a convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other persou. "If I sell my horse for money, I may keep him until I am paid; but I cannot have an action of debt until he be delivered; yet the property of the horse is by the bargain in the bargainor or buyer. But if he do presently tender me my money, and I do refuse it, he may take the horse, or have an action of detainment. And if the horse die in my stable, between the bargain and the delivery, I may have an action of debt for my money, because, by the bargain, the property was in the buyer." The action of trover cannot be supported, unless there is a perfect and complete right of property in the plaintiff. Hence when goods are sold, if any thing remain to be done on the part of the seller, as between him and the buyer', n Cuming v. Brown, 9 East, 506. o Phillimore v. Barry, 1 Camp. N.P.C. 513. p Mucklow v. Mangles, 1 Taunt. 319. q Per Holt C. J. in Langford v. Administratrix of Tyler, Salk. 113. r' Noy's Maxims, 83. recognised by Ld. Ellenborough C. J. in Hinde v. Whitehouse, 7 East, 571. s See Whitehouse v. Frost, 12 East, 614. |