time in the continuando. Bull. N. P. 86. So where trespasses are alleged to have been committed on a particular day, and on divers other days and times between that day and the commencement of the action, the plaintiff may prove either one trespass before the day specified, or as many trespasses as he can within the space of time mentioned in the declaration, but he cannot do both, and must waive the one or the other. Per Gould, J., Northumberland Summ. Ass. 1775, MSS., Chambre, J. In trespass (h) against several, the plaintiff having proved a joint trespass by all, cannot waive that, and give evidence of another trespass committed by one defendant only. Declarations respecting the subject matter of a cause, by a person who at the time of making them had the same interest in such matter as the plaintiff, were holden (i) to be admissible in evidence against him, although the maker of them was alive, and might have been called as a witness. Where the declaration charges the commission of trespasses in a close of the plaintiff, which it describes by abuttals, the plaintiff, in support of the declaration, is not obliged to prove trespasses committed in every part of the close. And if the defendant pleads that the "close in which, &c." is part of certain ground once waste, but which was set out under an award for particular purposes, and that he (defendant) is entitled to use it for those purposes; and if it appears that the whole extent of ground mentioned in the plea was not set out under the award, but if part of it was so set out, and the place where the trespasses proved were committed was within that part, then the defendant has proved his justification; for as the plaintiff is not bound to carry his proof of trespasses to every part of the close mentioned in the declaration, so the defendant is not bound to support his justification as to all parts. The "close in which, &c." does not mean the whole close referred to in the declaration, but the place in which the trespass is proved to have been committed, and the defendant may so apply it (k). To support a plea (framed on stat. 2 & 3 Will. IV. c. 71, s. 2, which see ante, p. 1111) of a right of way enjoyed for forty years, evidence (1) may be given of user more than forty years back. Under a plea (m) denying that the defendant had used the way for forty years, as of right and without interruption, the plaintiff is at liberty to show the character and description of the user and enjoyment of the way during any part of the time; as that it was used by stealth, or in the absence of the occupier of the close and without his knowledge, or that it was merely a precarious enjoyment by leave and license, or any other (h) Tait v. Harris, 1 M. & Rob. 282; 6 C. & P. 73; but see the remarks of Patteson, J., on this case, in Hitchen v. Teale, 2 M. & Rob. 31. (i) Woolway v. Rowe, 1 A. & E. 114; 3 Nev. & M. 849. (k) Bassett v. Mitchell, 2 B. & Ad. 99, recognizing Richards v. Peake, 2 B. & C. 918. (1) Lawson v. Langley, 4 A. & E. 890. (m) Beasley v. Clarke, 2 Bingh. N. C. 709, recognizing Tickle v. Brown, 4 A. & E. 369; 6 Nev. & M. 230. circumstances which negative that it is an user or enjoyment under a claim of right; the words of the 5th section (n), "not inconsistent with the simple fact of enjoyment," being referable to the fact of enjoyment as before stated in the act, viz. an enjoyment claimed and exercised" as of right." VI. Damages; Costs. Damages. By stat. 3 & 4 Will. IV. c. 42, 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 the seizure, in actions of trespass de bonis asportatis. In trespass for cutting into the plaintiff's close, and carrying away the soil, the proper measure of damages is the value to the plaintiff of the land removed, not the expense of restoring it to its original condition (o). Costs. On the subject of costs in actions of trespass, see the stat. 3 & 4 Vict. c. 24, (ante, p. 37,) explained as to actions in which verdicts had been returned before the passing of that act, by stat. 4 & 5 Vict. c. 28. By R. G. H. T. 4 Will. IV. 7, upon the trial, where there is more than one count, plea, avowry, or cognizance upon the record, and the party pleading fails to establish a distinct subject matter of complaint in respect of each count, or some distinct ground of answer or defence in respect of each plea, avowry, or cognizance, a verdict and judgment shall pass against him upon each count, plea, avowry, or cognizance which he shall have so failed to establish, and he shall be liable to the other party for all the costs occasioned by such count, &c., including those of the evidence as well as those of the pleadings. Upon a plea (p) of a right of way to fetch water and goods from a river, the jury having found the right to fetch water, and negatived the right to fetch goods, the court ordered judgment to be entered for the defendant as to the right to fetch water, and for the plaintiff as to the right to fetch goods. But where to an action of trespass, the defendant pleaded a right of way on foot and with horses, cattle, carts, waggons, and other carriages, for the convenient occupation of his close, K.: the jury having found that he had a right of carting timber and wood only from K.; it was holden (9), that plaintiff was entitled to the entire verdict, and that defendant could not enter it distributively for such right as the jury found. (n) For which see ante, p. 428. 3 Scott, 326. (q) Higham v. Rabett, 5 Bingh. N. C. 622; 7 Scott, 827. CHAPTER XL. TROVER. I. Of the Nature and Foundation of the Action of Trover, and in what Cases such Action may be maintained, p. 1343. II. By whom and against whom Trover may be maintained, p. 1364. III. The Declaration, p. 1366; Plea, and herein of the New Rules, p. 1368; Defence, and herein of the Doctrine of Liens, p. 1370; Evidence, p. 1378; Of staying the Proceedings, p. 1383; Damages, p. 1383; Costs, p. 1384; Judgment, p. 1384. 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 : 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 (a), in the goods which are the (a) Per Lord Mansfield, C. J., 1 T. R. 56. subject of the action; but it is not necessary to show that the plaintiff had both an absolute and special property (b); either the one or the other is sufficient. Absolute property is where one (c), having the possession of goods, has also the exclusive right to enjoy them, and which can only be defeated by his own act. Timber (d) while standing is part of the inheritance; but when severed, either by the act of God, as by tempest, or by a trespasser and by wrong, it belongs to him who has the first estate of inheritance, whether in fee or in tail, who may bring trover for it. Trover was brought by a tenant in tail, expectant on the determination of an estate for life (e), 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 (f). Trustees of an estate pur autre vie cannot maintain trover for trees felled upon the estate (g); 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. 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 (h) 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 defendant, a wharfinger, having acknowledged timber on his wharf to be the property of the plaintiff; it was holden (i), that he could not afterwards dispute it, and set up the title of a third person. The owner of goods stolen, prosecuting the felon to conviction, cannot recover the value of them in trover from a person (k) who has purchased the goods in market overt (1), 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. But where property feloniously taken from the plaintiff was sold by the felon to defendant, who purchased bonâ fide, (b) Per Lawrence, J., 7 T. R. 398. (c) Ib. (d) Per Lord Talbot, C., in Bewick v. Whitfield, 3 P. Wms. 268. (e) Pyne v. Dor, 1 T. R. 55. (f) Williams v. Williams, 12 East, 209. (g) Blaker v. Anscombe, 1 Bos. & Pul. N. R. 25. (h) Berry v. Herd, Palm. 327, and Cro. Car. 242, cited by Lawrence, J., in Gordon v. Harper, 7 T. R. 13. (i) Gosling v. Birnie, 7 Bingh. 339. (k) Horwood v. Smith, 2 T. R. 750. (1) See as to sales in shops, Lyons v. De Pass, 3 P. & D. 177; 11 A. & E. 326. but not in market overt; the plaintiff gave notice of the felony to the defendant, who afterwards sold the property in market overt, after which the plaintiff prosecuted the felon to conviction; it was holden (m), that the plaintiff might recover from the defendant the value of the property. 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 (n), 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 Lord 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 (o), 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 (p), 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). A. order a tradesman to send him goods by a hoyman (q), 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 (m) Peer v. Humphrey, 2 A. & E. 495; 4 Nev. & M. 430. (n) Hunter v. Rice, 15 East, 100. (0) Said to have been determined by Eyre, C. J., at Shrewsbury Assizes, 3 P. Wms. 186; Dutton v. Solomonson, 3 Bos. & Pul. 582, S. P. If (p) Haynes v. Wood, per Herbert, J., Surrey Ass. 1686, Bull. Ñ. P. 36. (g) Colston v. Woolston, T. 1 Ann., London Sittings, per Holt, C. J., Salk. MSS.; Bull. N. P. 35, 6. (1) The only exception to the purchaser's right over the goods is, that the vendor, in the case of the purchaser becoming insolvent, may stop them in transitu. See ante, Chap. XXXVII. p. 1260. (2) Trover will not lie against a carrier for the mere non-delivery of goods. See ante, p. 411. |