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the same indenture assigned to him certain chattels by way of security, but by the terms of the mortgage deed the mortgagee was only to enter upon the demised premises if default of payment of the mortgage money should be made on a certain day: it was held, that the mortgagee could not, prior to that day, maintain trespass against the sheriff for entering upon the demised premises, and levying upon the said chattels under a fi. fa.(r) The true ground of this decision being, that a lessee for years before entry cannot maintain trespass qu. cl. fr., and as to the goods, that trespass to chattels cannot be maintained by one who has neither possession nor the right of possession at the time of the alleged trespass.(s) A mere gratuitous permission, however, to a third person to use a chattel, does not, in contemplation of law, take it out of the possession of the owner; and he may

maintain trespass for any injury done to it while it is so used, (1) or the gratuitous

bailee may sue.(u) Where, however, there is an *injury to the [*205]

reversion, as in the case of a horse let on hire, and killed by defendant's violent driving, although trespass lies at suit of the party in possession, the owner may have an action on the case for such injury to his reversion.(2) In trespass for taking away the materials of a bridge erected and dedicated by plaintiff'to the public use, it was held, that the property in such materials, on ceasing to form a part of the bridge, reverted to the plaintiff as original owner.(y)

251. In trover, that party must sue who has the property(z) in the goods, either absolute or special, coupled with the right of possession, the distinction between the actions of trespass and trover being, that the former is

founded on possession, the latter on property.(a) Since, therefore, [*206]

the owner of a chattel retains his right of property in the goods, even while they are in the custody of the law, he may, when they are out of such custody, maintain trover for them, and it will be no defence for the party in possession to show that the goods have been at a prior time in the custody of the law.(b)

251 a. With respect to the action of detinue, which, however, should

(r) Wheeler v. Montefiore, 2 Q. B. 133.r (8) Judgment, Doe d. Parsley v. Day, 2 Q. B. 155. In trespass de bonis asportatis a plea denying that the goods are the plaintiff's, puts in issue the property as well as the possession, Harrison v. Dixon, 12 M. & W. 142.* See Griffiths v. Puleston, 13 M. & W. 358.4

(1) Lotan v. Cross, 2 Camp. 464. !u) Rooth v. Wilson, 1 B. & Ald. 59. (2) Hall v. Pickard, 3 Camp. 187; Ferguson v. Cristall, 5 Bing. 305. (y) Harrison v. Parker, 6 East, 154; Lade v. Shepherd, 2 Stra. 1004. (2) When property passes under contract or sale, see Laidler v. Burlinson, 2 M. & W. 602, and cases there cited; Scott v. England, 14 L. J., N. S., Q. B., 43; property does not pass by a verbal gift unaccompanied by delivery, Irons v. Smallpiece, 2 B. & Ald. 551 ; see Lunn v. Thornton, 1 C. B. 379; followed in Gale v. Burnett, 14 L. J., N. S., Q. B., 340; Reeves v. Capper, 5 Bing. N. C. 136. 139.t

(a) Per Ashhurst and Grose, JJ., Gordon v. Harper, 7 T. R. 490; Per Lord Kenyon, C.J., Ward v. Macauley, 4 T. R. 490; Bloxam v. Sanders, 4 B. & C. 941 ;u Benjamin v. Bank of England, 3 Camp. 417; Brockbank Anderson, 7 Scott, N. R. 813; Rackham v. Jesup, 3 Wils. 332; Flewellin v. Rave, 1 Bulstr. 68; Fraser v. The Swansea Canal Company, 1 A. & E. 354. See particularly, Wilbraham v. Snow, 2 Wms. Saund. 47 a, n. (1), and the cases there cited. Per_Maule, J., Leake v. Loveday, Scott, N. R., 926. (6) Turner v. Fore, 15 L. J., N. S., Ex. 215. Eng. Com. Law Reps. 42. SId. 15. 'Id. 35. Id. 10. Id. 28.

*Reprinted at $2.50 per vol.

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more properly be classed with actions in form ex contractu,(C) it will be convenient here to observe that this action, the gist of which is for the wrongful detainer,(d) may, like trover, be sustained by the party having the general or special property in specific goods and the right to the imme. diate possession against another, who is in actual possession thereof, either by delivery or finding, and who refuses to re-deliver them ;(e) as, if A. deliver goods to B. to deliver to C., C. may have detinue, for the property is vested in him by the delivery to his use. (f)

252. Absolute property is where one having the possession of chattels has also the exclusive right to enjoy them, and which can only be defeated by some act of his own.-Special property is where he who has the possession holds them subject to the claims of other persons,(s)—as in the case of a sheriff, who has seized goods under a fi. fa. ;(h)

[*206 a ] and is acquired as against a wrong-doer by mere possession(i) in the absence of other proof, (k)) or by bailment,(l) though gratuitous ;(m) in which latter case, either the bailor or the bailee may sue, and whichever first obtains damages, such recovery operates as a complete satisfaction.(n)

252 a. In the case of a pledge of goods, the pawnor relains his property in the chattel pawned, subject only to the rights of the pawnee; he may, therefore, transfer to another the qualified property which he himself possesses, and the purchaser may maintain trover against the pawnee for a wrongful conversion of the chattel.(0) So, if several chattels are pawned for one entire sum, and subsequently sold by the pawnor to several purchasers, trover will lie for a conversion at suit of each *purchaser against the pawnee, though the latter will not be bound to part

[ *2066] with any of the chattels until the whole debt be paid. Again, “ suppose the chattel is injured by default of the pawnee while in his custody, who is to sue the pawnee—the original pawnor or the purchaser ? The answer is obvious. The person with whom the contract is made, that is, the original depositor, is the proper plaintiff if the action be for a breach of contract, express or implied, unless a new one be made with the purchaser. The owner for the time being is the proper plaintiff if the injury be by the

(c) Per Tindall, C. J., Walker v. Needham, 4 Scott, N. R. 226.

(d) See Gledstane v. Hewitt, 1 Cr. & J. 565; Walker v. Jones, 2 Cr. & M. 672; White. head v. Harrison, 6 Q. B. 423. 431.

(e) Philips v. Robinson, 4 Bing. 106. 111;a Co. Litt. 286, b.; Kettle v. Bromsall, Willes, 118. See Bateman v. Elman, Cro. Eliz. 866 ; Per Grose, J., 7 T. R. 12.

(f) 1 Roll. Ab. 606 (C.); pl. 1; cited per Coleridge, J., Whitehead v. Harrison, 6 Q. B. 428; Flewellin v. Rave, 1 Bulstr. 68.

(g) Per Lawrence, J., Webb v. Fox, 7 T. R. 398; 2 Wms. Saund. 47 d.; infra, n. (mn). (h) Wilbraham v. Snow, 1 Saund. R. 47. (i) 2 Wms. Saund. 47 c, and cases there cited; Smith v. Sleap, 12 M. & W.585. 589.* (k) See the judgment in Elliott v. Kemp, 7 M. & W. 306.*

(L) Armory v. Delamirie, 1 Stra. 504; Burton v. Hughes, 2 Bing. 173; Brancker v. Molyneux, 3 Scott, N. R. 332; Sutton v. Buck, 2 Taunt. 302; Arnold v. Jefferson, 1 Lord. Raym. 275. See Roberts v. Wyatt, 2 Taunt. 268.

(m) Rooth v. Wilson, 1 B. & Ald. 59, which was an action on the case by a gratuitous bailee; Nicolls v. Bastard, 2 Cr. M. & R. 659, cited arg. Howarth v. Tollemache, 5 Scott, N. R. 332.

(n) Per Parke, B., 2 Cr. M. & R. 663; Flewellin v. Rave, 1 Bulstr. 68; 2 Bla. Com. 452, 453. See Knight v. Legh, 4 Bing 589.b (6) Franklin v. Neate, 13 M. & W. 481. 485.

* Eng. Com. Law Reps. 13. bid. 13. *Reprinted at $2.50 per vol. MAY, 1847.-10

a

destruction or conversion of the chattel, just as in the case of a carrier the original employer is the person to sue for the loss, for negligent carriage, or other breach of contract; the other subsequent purchaser for the conversion after the purchase."(p)

253. But trover will not in general lie, at suit of the owner, for goods which have been let to hire or demised for an unexpired term,(9) though, for consequential damage to them, he would be entitled to sue as reversioner.(r) If, however, the right of possession reverts to the bailor by the wrongful act of the bailee, the former may thereupon maintain trover for the goods ; ex. gr. ; A. conveyed goods by bill of sale to B. who allowed A.

*to use the goods on payment of a weekly rent, A. undertaking [ *206 c ]

to deliver them up on demand. A. afterwards sold and delivered the goods to C., a bona fide purchaser :-Held, that B. might maintain trover against C.(s) Here, it will be observed, the bailor became entitled to the immediate possession of the goods by the tortious act of the bailee ; and in order that he may maintain trover, it is necessary that he should be so entitled. Where therefore A., being indebted to B., conveyed to him all his stock in trade, &c., absolutely by a bill of sale (under seal), which was executed bona fide, and this bill of sale contained a covenant by A. to pay the debt on demand, and a proviso for redemption on payment of the debt and interest on demand, together with a further proviso that the assignor should contiue in possession until default, the goods having been seized under a fi. fa. whilst in the possession of A., and before any demand made by B. : it was held, that B. had not such a right of immediate possession as to entitle him to maintain trover against the sheriff.(t)

253 a. It frequently happens that the right to maintain trover for chattels depends upon a question of fact, viz., whether or not a certain specified condition has been performed by the plaintiff, the performance of such

*condition being precedent to the complete vesting of the pro[ *206 d]

perty in him.(u) Such questions in practice frequently arise as between the creditor and the assignees of a bankrupt, the creditor claiming to be entitled to the goods which are the subject matter of the action by virtue of a bonâ fide sale to him, and the contention on the part of the assignees being that such alleged sale was incomplete in consequence of the failure by the creditor in performing some condition precedent before the date of the act of bankruptcy to which the title of the assignees relates. A similar question may likewise arise in an action of trover by the execution creditor against the sheriff, in which case the sheriff will not in general be precluded from setting up the title of the assignees as an answer to the action,

(p) Judgment, 13 M. & W.485, 486.*

Gordon v. Harper, 7 T. R. 9; Bloxam v. Sanders, 4 B. & C. 941;c Milgate v. Keb. ble, 3 Scott, N. R. 358; Pain v. Whittaker, 1 Ry. & M.99.d

(r) See Attersoll v. Stevens, 1 Taunt. 190; and see further as to case, post, ss. 261. 268.

(8) Cooper v. Willomatt, 1 C. B. 672, recognising Loeschman v. Machin, 2 Stark. N. P. C. 311,e cited 5 Bing. 307, and distinguishing Gregg v. Wells, 10 A. & E. 90; Scott v. Newington, 1 M. & Rob. 252.

(1) Bradley v. Copley, 1 C. B. 685, recognising Gordon v. Harper, 7 T. R. 9.

(u) Wilmhurst v. Bowker, 5 B. N. C. 541,5 the judgment in which case was reversed in error, 8 Scott, N. R. 571, although the correctness of the general principle laid down by the court of Common Pleas was admitted. Eng. Com. Law Reps. 10. Id. 21. Id. 3. 'Id. 15, $Id. 35.

*Reprinted at $2.50 per vol.

and their title may be given in evidence under "not possessed ;" for the plaintiff can only recover in trover upon shewing that he has the property either absolute or special in the goods that are the subject of the action, and also a right of possession ; and this property and possession are put in issue by the above plea, which will be established by shewing that the goods at the time of the conversion were the property of third persons.(w) On the same principle which has been illustrated by us in the preceding remarks, and which is of general application, it has been held that the owner of *an indenture, assigned by way of security for the repayment of money, cannot, until the condition is satisfied, maintain trover for

[*207] its recovery ;(9) and, as between vendor and vendee, the rule is, that the sale of a specific chattel on credit, though such credit may be limited to a definite period, transfers the property in the goods to the vendee, giving the vendor a right of action for the price, and a lien upon the goods, if they remain in his possession, till that price be paid, but default in payment does not rescind the contract, unless conditional words be expressly introduced into the bargain.(1)

254. But where a tenant has a qualified possession only, as in chattels annexed to the freehold, and forming parcel of the inheritance, which determines on their being wrongfully severed, or in trees, the property in which, when detached from the soil by the wrongful act of the tenant, or by the act of God, vests in the person entitled to the first estate of inheritance ;(8) in these and similar cases, the party who has the right of possession in the goods may sue for their conversion, even during the continuance of the term.(t) And for the same reason, lessor of tenant from year to year, although *there be no reservation of the timber on the premises, may bring trespass against a third person for carrying it away after

[*208] it has been cut down :(u) but not so if he has himself wrongfully severed trees unfit for timber, and which, therefore, if blown down, would have belonged to the tenant, for he could not, by so doing, acquire any right to them.(v) Where trees are excepted in the lease, the tenant has of course no property in them, even of a qualified kind ;(w) and, in this case, the land on which the trees grow, being likewise necessarily excepted, the lessor may maintain trespass for breaking his close and cutting down the trees. (x)

255. If the real owner of goods stands by and voluntarily allows another

(2) See per Maule, J., in Leake v. Loveday, 5 Scott, N. R. 925.

(9) Owen v. Knight, 4 Bing. N. C. 54; Isaac v. Belcher, 5 M. & W.139; Wilmshurst v. Bowker, 5 Bing. N. C. 541,5 and 3 Scott, N. R. 272; Milgate v. Kebble, 3 Scott, N. R. 358.

(r) Martindale v. Smith, 1 A. & E., N. S. 389. 395, and cases there cited; Dixon v. Yates, 5 B. & Ad. 313, supra, n. (9).

(s) Berry v. Heard, Cro. Car. 242; Evans v. Evans, 2 Camp. 491. A tenant for life without impeachment of waste is entitled to timber when severed from the estate, Co. Litt. 220, a.; Pyne v. Dor, 1 T. R. 55.

(1) Farrant v. Thompson, 5 B. & Ald. 826. 828 ; Per Lawrence, J., Gordon v. Harper, 7 T. R. 13; Blackett v. Lowes, 2 M. & S. 494; 1 Wms. Saund. 322, n. (5); Blaker vi Anscombe, 1 Bos. & P., N. R. 25.

(u) Ward v. Andrews, 2 Chitt. R. 636 ;" Evans v. Evans, 2 Camp. 491.
(v) Channon v. Patch, 5 B. & C. 897.n
(v) 1 Wms. Saund. 322 a, n. (5). See Legh v. Heald, 1 B. & Ad. 622.o
(x) Rolls v. Rock, cited, 2 Selw. N. P. 10th ed. 1314.

bEng. C. L. Reps. 35. Id. 41. Id. 27. 'Id, 7. mId. 18. nId. 12. oId. 20.

to treat them as his own, whereby a third personis induced to buy them bona fide, the owner cannot recover such goods from the vendee, whom he thas himself assisted in deceiving :(y) nor can a party, who negligently or culpably allows another to contract on the faith and understanding of a fact, which he can contradict, afterwards dispute that fact in an action against the person so contracting. 3) But as against a mere wrong-doer, who sells the

goods which he has *taken and receives the proceeds, the party, [*209]

from whose possession they were taken, may waive the tort, and maintain an action for money had and received, without proving any title to the goods beyond mere possession ;(a) and, if the defendant was guilty of a series of trespasses, and not of one single wrongful act, the plaintiff may pursue different remedies for the different injuries; for the suing in trespass for one tort is no waiver of the right to sue for money had and received, to recover the value of goods taken under a prior tort.(6)

256. In determining as to the joinder or severance of parties suing for a tort, we must observe, c) first, that where the legal interest, affected by the tortious act, is joint, the parties interested must sue jointly for compensation; as in the interest of part-owners of a chattel, who must join in suing for a tort thereto,(d) or, in trover for its conversion ;(e) or, in the case of a bailment by two, who must join in detinue for the recovery of the chattel. (f) So, two church wardens were held to sue jointly for a false return to a mandamus, on the ground that the mandamus and the prosecution and

*charge thereof were joint.(8) And although, in general, partners [*210]

must join in suing for a tort to the partnership property, yet it has been held that a partner, colluding with the stranger to injure the firm, may be omitted in an action on the case against such third person.(h)

257. Secondly, where several persons, who are severally interested, sustain a joint damage, they may sue either jointly or separately in respect thereof. In accordamce with which rule, it was held, that the several owners of mills might join in an action on the case, for not grinding corn thereat; for although their interest were several, yet the not grinding at any of their mills was an entire joint damage.(i) So the dippers at Tunbridge Wells were entitled to join in suing a person who exercised the office of a dipper, without being duly appointed ; for, although severally entitled to receive gratuities for their own several use, yet, with regard to a stranger's disturbing them in their employment, they were all jointly con

(y) Gregg v. Weils, 10 A. & E. 90;' Pickard v. Sears, 6 A. & E. 469.9

(z) Id. (a) Oughton v. Seppings, 1 B. & Ad. 241. See the judgment in Clark v. Gilbert, 2 Bing. N. C. 357, 358;s Chitt. Contr. 3rd ed. 607.

(6) Powell v. Rees, 7 A. & E. 426. (c) Coryton v. Lithebye, 2 Wms. Saund. 116 a, n. (2). As to the mode of taking advantage of non-joinder of a plaintiff, see 1 Wms. Saund. 291 g, h.

(d) Sedgeworth v. Overend, 7 T. R. 279 ; Addison y. Overend, 6 T. R. 766 ; Child v. Sands, 1 Salk. 31.

(e) Bloxam v. Hubbard, 5 East, 407. (f) Com. Dig. Abatement, (E. 12.)

() Ward v. Brampston, 3 Lev. 362; Green v. Pope, 1 Lord Qaym. 125; Pechell v. Watson, 8 M. & W. 691 ; post, s. 258.

(h) Longman y. Pole, 1 Moo. & Mal. 223. See s. 258. (i) Coryton v. Lithebye, 2 Saund. R. 115.

pEng. Com. Law Reps. 37. 9Id. 33. "Id. 20. 'Id. 29. 'Id. 34.

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