that the goods have been lost through negligence; but if that does not appear, or if the carrier had the goods in his custody when he refused to deliver them, it is good evidence of a conversion (25). But he may give in evidence the detaining of the goods for his hire. So he may give in evidence, that the goods were stolena, for then he is not guilty of a conversion, though he will be liable in an action on the case to make compensation for the loss of the goods. If A. sends goods by B., a common carrier, to be delivered to C., proof that B. asserted he had delivered the goods to C., whereas in truth C. had never received them, is not sufficient evidence of a conversion to support trover against B. So in trover for a horse in an innkeeper's possession, refusal is not a conversion, or evidence of a conversion, unless the plaintiff tender a sum sufficient for the keep of the horse, and the jury is to judge of the sufficiency of the tenderc (26). But if A. put

y Salk. 655. Dewell v. Moxon, 1 Taunt. 391. S. P.

z Skinner v. Upshaw, 2 Lord Raym. 752. The case of the Exeter carrier, cited by Holt, C. J. in Yorke v. Grenaugh, Lord Raym. 867.

a George v. Wyburn, 1 Rol. Abr. 6. (L.) pl. 4.

b Attersol v. Briant, 1 Campb. 409. Ellenborough, C. J.

c Anon. 2 Show. 161, per North, C. J.

(25) "If a carrier says, he has the goods in his warehouse, and refuses to deliver them, that will be evidence of a conversion, and trover may be maintained, but not for a bare non-delivery, without any such refusal." Per Lord Ellenborough, C. J. in Severin v. Keppel, 4 Esp. N. P. C. 157.

(26) "If a man bring his horse to an inn, and leave him there in the stable without any special agreement as to what he is to pay, the innkeeper is not bound to deliver the horse until the owner has defrayed his charge for the horse; but he may justify the detainer of the horse for his food and keeping; and after the horse has eat as much as he is worth, the innkeeper, upon a reasonable appraisement, may sell him, and it is a good sale in law. But if there be a special agreement, that the owner of the horse shall pay a certain sum for the keep, in that case, although the horse eat out double his price, the innkeeper cannot sell him.' Per Popham, C. J. Yelv. 67. But see Chase v. Westmore, ub. sup. ante, p. 1409, and Judson v. Etheridge, ante, p. 1410, and see also Jones v. Pearle, Str. 556, where it was holden, that an innkeeper cannot sell the horse of his guest, except in the city of London. See Thompson v. Lacy, ante, p. 1408. In Johnson v. Hill, 3 Stark. N. P. C. 172, where A. under the colour of a legal proceeding, having wrongfully seized the horse of B., took it to an inn, where it was kept for several days. The landlord refused to deliver up the horse to B upon a demand made

a horse to pasture with B., and agree to pay him a certain sum per week as long as he remains at pasture, and afterwards sell him to C., who brings trover against B., B. cannot detain the horse against C. the purchaser, until he be paid, but must have recourse to his action against Ad. Where bills of exchange were delivered by a trader, in contemplation of bankruptcy to a creditor, with a view of giving him a preference, and the amount due on the bills was received by him after the bankruptcy, it was holdene, that the receipt of the money did not amount to a conversion, and consequently that it was necessary to prove a demand of the bills and a refusal. The vendor of a quantity of tin, shipped the same on board a ship to Leghorn, by the orders of the vendee; and the captain, by his bill of lading, undertook to deliver the tin to an individual at Leghorn; the tin, being heavy, was placed at the bottom of the hold, with other goods over it; the vendee having become bankrupt, the vendor required the captain to deliver the tin, but did not tender the freight, or offer to make any compensation to him for the trouble of unloading the vessel. The captain refused, alleging, that he signed a bill of lading to deliver the tin to another person; and that he would not deliver to plaintiff; it was holden, that this was presumptive evidence of a conversion; for the captain had dispensed with the tender. In trover against several defendants, all cannot be found guilty on the same count, without proof of a joint conversion by alle. Possession ought to be proved in the defendant himselfh, for delivery to a servant is not sufficient, if the goods do not come to the hands of the defendant, unless the servant be employed by his master to receive goods for him, and the goods are delivered in the way of his trade; as if a pawn be delivered to a pawnbroker's servanti. In trover

d Chapman v. Allen, Cro. Car. 271.
But see Chase v. Westmore, 5 M. &
S. 180.

e Jones v. Fort, 9 B. & C. 764.
f Thompson v. Trail, 6 B. & C. 36.

g Nicoll v. Glennie and others, 1 M. and S. 588.

h Bull. N. P. 44.

i Jones v. Hart, Salk. 441.

soon after the delivery to him; but a few days afterwards offered to give up the horse to B. on being paid ten shillings for the keep. The chief justice was of opinion, that if the landlord knew, at the time the horse was delivered into his custody, that A. was not the owner of the property, but a mere wrong-doer, he made himself a party to the wrongful act of A., and could not insist on any recompense for keeping the horse; and this being left to the jury, they found for B. the plaintiff.

against defendant for not delivering some wine deposited with her as a security for an advance of money, it was holden, that it was not sufficient evidence of a conversion, to shew that her son, who acted as her general agent, refused to give it up; and that it was necessary to prove that such agent acted under a special direction, in order to make the defendant liable as a wrong-doer. In trover for a bill of exchange, the damages are to be calculated according to the amount of the principal and interest due upon the bill at the time of the conversionk.

Of Staying the Proceedings-Damages-Costs-Judgment.

Formerly, if the defendant was desirous of staying the proceedings against him, by bringing the subject matter of the action into court, and undertaking to pay the costs incurred, the court refused to listen to the application', unless the action was brought for moneym, observing, that they had not any warehouse for the purpose. But of late years it has been usual to grant applications of this kind, when a proper case has been brought before the court (27). But not where it appears that the goods are altered, and of less value than they were when takeno (28).

Damages.

By stat. 3 & 4 W. 4. c. 42. [14th August, 1833,] s. 29, the jury, on the trial of any issue or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest over and above the value of the goods at the time of

i Pothonier v. Dawson, Holt's N. P. C. 383.

k Mercer v. Jones, 3 Campb. 477.

1 Salk. 597. Bowington v. Parry, Str. 822. Olivant v. Perineau, Str. 1191. 1 Wils. 23. S. C. Harding v. Wilkin, Say. 120.

m Anon. Str. 142.

n Per Lord Kenyon, C. J. 7 T. R. 54. Everard v. Lathbury, Bull. N. P. 49. o Royden v. Batty, Barnes, 284. Fisher v. Prince, 3 Burr. 1363.

(27) See Pickering v. Truste, 7 T. R. 53, where this doctrine was extended to trespass for taking goods.

(28) Where the goods are ponderous, the court will grant a rule to shew cause, why, on the delivery of the goods to the plaintiff, and on payment of costs, the proceedings should not be stayed. Cooke v. Holgate, C. B. Barnes, 281. ed. 4to.

7 G. 3. Bull. N. P. 49.

Watts v.

Phipps, B. R. E.

the conversion, in all actions of trover. Where? after an act of bankruptcy, a sheriff seizes and sells goods, in trover by the assignees, the jury may deduct in their estimate of damages, the expenses of the sale. Defendant, a sheriff, who held goods taken in execution, delivered them to the plaintiffs, assignees of a bankrupt, after an action of trover had been commenced by them: the plaintiffs accepted the goods without condition: it was holden that they could not recover in the action more than nominal damages; at all events, not without alleging special matter in the declaration.

Costs.

The action of trover not being within the stat. 22 and 23 Car. 2. c. 9, the recovery of damages to any amount will entitle the plaintiff to costs by virtue of the stat. of Gloucester. The stat. 8 and 9 W. 3. c. 11. s. 1s, which gives costs to persons who are improperly made defendants in actions or plaints of trespass, assault, false imprisonment, or ejectio firmæ, does not extend to actions of trover.

Judgment.

The judgment in this action is for the recovery of damages onlyt, and in this respect it differs from the judgment in the analogous action of detinue, which is for the recovery of the goods in question, or the value thereof, if the plaintiff cannot have the goods.

p Clarke v. Nicholson, 1 Cr. M. & R. 724. 5 Tyr. 233.

q Moon v. Raphael, 2 Bingh. N. C. 310. r Per Cur. in Ven v. Phillips, Salk. 280.

s Marriner v. Barret, P. 1 G. 2. cited in Ingle v. Wordsworth, 3 Burr. 1285.

t Knight v. Bourne, Cro. Eliz. 116.

CHAP. XLI.

USE AND OCCUPATION.

In

FORMERLY an action of assumpsita for rent arrear upon a parol lease for years could not have been maintained, either pending, or after the expiration of the term, because it was considered as a real contract: the only remedies were by distress or action of debt. But on a mere promise to pay a sum of money, or so much as the plaintiff deserved to have, in consideration of the plaintiff's permitting the defendant to occupy lands, &c. an action of assumpsit might have been maintained by the common law. In this case the objection as to the contract being real, was removed by considering the permission to occupy as not amounting to a lease, and the mere promise to pay a sum of money in consideration of such permission, as not amounting to a reservation of rent. order, however, more effectually to obviate the difficulties which occurred in the recovery of rent, where the demise was not by deed, it was enacted, by stat. 11 G. 2. c. 19. s. 14, "that landlords, where the agreement is not by deed, may recover a reasonable satisfaction for the lands, tenements, or hereditaments, held or occupied by the defendant, in an action on the case, for the use and occupation of what was so held or enjoyed; and if in evidence on the trial of such action, any parol demise, or any agreement (not being by deed) whereon a certain rent was reserved shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." Under this statute f, a landlord who has rent owing to him is allowed to recover, not the rent, but an equivalent for the rent, a reasonable satisfaction

a Brett v. Read, Sir W. Jones, 329. Cro. Car. 343.

b 1 Rol. Abr. 7. (O.) pl. 1.

c Ib. pl. 2. See also Green v. Harrington, Hob. 284. Hutt. 34. S. C.

d Dartnal v. Morgan, Cro. Jac. 598. Chapman v. Southwicke, 1 Lev. 204.

Johnson v. May, 3 Lev. 150. Adjudged on demurrer.

e How v. Norton, 1 Lev. 179. Mason v. Welland, Skin. 238. 242.

f Per Eyre, C.J. delivering the opinion of the Court in Naish v. Tatlock, 2 H. Bl. 323.