CHAP. XL. TROVER. be I. Of the Nature and Foundation of the Action of Trover, and in what Cases such Action may 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. I. 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 action 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 defendant 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 conversion. 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 lifed, without impeachment of waste, for timber which grew upon, and had been severed 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. 242.8 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 sever ance. The owner of goods stolen, prosecuting the felon to conviction, cannot recover the value of them in trover from a a Per Lord Mansfield, C. J. 1 T. R. 56. f Pyne v, Dor, 1 T. R. 55. e Williams v. Williams, 12 East, 209. Blaker v. Auscombe, 1 Bos. & Pul. g Cited by Lawrence, J. ia Gordon v. 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. An arbitrator, to whom all matters in difference between a landlord and tenant had been referred, awarded that a stack of hay should be delivered up by the tenant to the landlord, upon being paid a certain sum for it. The landlord tendered the money, but the tenant refused to receive it, or to deliver up the hay; whereupon the landlord brought trover against the tenant for the hay. It was holden', that this action could not be maintained; for the property was not transferred by the mere force of the award, and that the landlord's only remedy was to proceed against the tenant upon the award; but Ld. Ellenborough observed, that the case might have been different if the tenant had accepted the money tendered, for that would have been a ratification of the award, and an assent on the part of the tenant to the transfer of the property. 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). h Horwood v. Smith, 2 T. R. 750. 3 P. Wms. 186. Dutton v. Solomonson, 3 Bos. & Pul. 582. S. P. 1 Haynes v. Wood, per Herbert, J. Surrey Ass. 1686. Bull. N. P. 36. * (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-delivery of goods. See ante, p. 398. 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 such case the tradesman could not have brought trover against the hoyman. The property of goods passes by the indorsement 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 indorsee 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 anddelivered 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 person'." 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 pro m Colston v. Woolston, T. 1 Ann. p Phillimore v. Barry, 1 Camp. N. P. C. 513. q Mucklow v. Mangles, 1 Taunt. 318. r Per Holt, C. J. in Langford v. Administratrix of Tyler, Salk. 113. perty 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" With respect to stolen horses, the property is not altered by a sale in market overt, unless the provisions of 2 P. & M. c. 7. and 31 Eliz. c. 12. are complied with. The regulations are in substance as follows: First, the horse must be exposed openly in the place used for sales for one whole hour, between ten in the morning and sun set, and afterwards brought by both vendor and vendee to the book-keeper of the fair or market; secondly, toll must be paid, if any due, and if not, one penny to the book-keeper, who shall enter the price, colour, and marks of the horse, with the names, additions, and abode of the vendor and vendee; and if the vendor is not known to the book-keeper, the vendor shall bring one credible witness to avouch his knowledge of the vendor, whose name in like manner is to be entered. The property of the owner is not to be taken away by such sale, if within six months after the horse is stolen, he puts in his claim before some magistrate where the horse is found, and within 40 days more proves such property by the oath of two witnesses, and tenders to the person in possession of the horse such price as he bonâ fide paid for it in market overt. 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, to ascertain the price, quantity", or individuality of the goods before the commodity purchased is to be delivered, a complete present right of property does not attach in the buyer, and consequently trover is not maintainable. The plaintiff purchased of the defendant a quantity of starch', which was lying at the warehouse of a third person, at so much per cwt. by bill at two months, for the delivery Noy's Maxims, 99. recognised by See Whitehouse v. Frost, 12 East, u Wallace v. Breeds, 13 East, 522. Busk v. Davis, 2 M. & S. 397. See also White v. Wilks, 5. Taunt. 176. Shepley v. Davis, 5 Taunt. 617. 1 Marsh. 252. S. C. and Withers v. Lyss, 4 Camp. N. P. C. 237. y Hanson v. Meyer, 6 East, 614. See also Zagury v. Furnell, 2 Camp. N. P. C. 240. |