take back from B. what he should not be able to sell, and allowing him what he should obtain beyond a certain price, with liberty to sell them for what he could get, if he could not obtain that price. B., not having been able to sell the goods in India himself, left them with an agent to be disposed of by him, directing the agent to remit the money to him (B.) in England. It was holden that A. could not maintain trover against B. for the goods.

Trover will not lie for goods irregularly sold under a distress'; the statute 11 G. 2. c. 19. s. 19. having declared that the party selling should not be deemed a trespasser ab initio, and having given an action on the case to the party grieved by such sale.

But if a party pay money in order to redeem his goods from a wrongful distress for rent, he may maintain trover against the wrong-doer.

II. By whom and against whom Trover may be maintained.

ONE joint-tenant, or tenant in common, or parcener, cannot bring trover against his companion for goods remaining in his possession, because the possession of one is the possession of both; if trover be brought, the joint-tenancy, &c. is good evidence upon the plea of not guilty'.

Upon this principle it was holden", that A., a member of an amicable society, who had been entrusted with a box, containing the sums of money subscribed, and was bound by bond to keep it safely, could not maintain trover against B., another member of the same society, and a stranger, in a case where B. had got possession of the box, carried it away, and delivered it to the stranger; Buller J. observing, that it was admitted, that one of the defendants was a member of this society, and, consequently, had a general property in the box; that a special property could not give a right in this action against a general property. The custody only was committed to the plaintiff; the property remained in the society.

i Wallace v. King, 1 H. B). 13.
k Shipwick v. Bjauchard, 6 T. R. 298.
1 2 Leun. 220. case 278,

m Holliday v. Camsell and White, 1 T. R. 65s.

After an act of bankruptcy, committed by one of two partners", joint effects were sent away, which came to the defendant's hands; then the solvent partner died, leaving the defendant his executor, and afterwards a commission of bankrupt was taken out against the surviving partner, and his estate assigned to the plaintiffs; it was holden, that they were tenants in common with the solvent partner, and after his decease with his representatives, by relation from the act of bankruptcy; and, consequently, could not maintain trover against the defendant claiming under such soivent part

ner.

After an act of bankruptcy, committed by one of two partners, the other delivered goods, part of their joint property, to a creditor, for a joint debt, and died, and afterwards a commission issued against the surviving partner; it was holden, that this was in substance the same with the preceding case; that the creditor, by virtue of such delivery by the solvent partner, became tenant in common of the goods with the assignees of the bankrupt by relation from the act of bankruptcy, which was in the life-time of the solvent partner, and, consequently, that the assignees could not maintain trover against such creditor.

If one tenant in common merely takes the thing in com'mon out of the possession of his companion, and carries it away, there no action lies by the other tenant in common?; but if he destroy the thing in common, the other may bring trespass or trover. As where it appeared that one tenant in common of a ship had forcibly taken it out of the possession of his companion, and secreted it from him, so that he knew not where it was carried, and changed the name of it, and it afterwards got into the hands of a third person, who sent it on a foreign voyage, where it was lost, Lord King C. J. left it to the jury, whether under the circumstances, the destruction was not by the defendant's (the tenant in common) means; and the jury finding in the affirmative, the court on motion for a new trial, approving of the chief justice's direction, refused to set aside the verdict (9).

n Smith and others, assignees &c. v. Stokes, East, 363.

o Smith and others, assignees, &c. v. Oriell, East, 368.

p Brammel v. Jones, B. R. T. 22 Geo, 3. MS.

q Barnardiston v. Chapman, C. B. Hil. 1
T. 1 G. 1. cited from Ld. C. J.
King's MS. in Heath v. Hubbard,
4 East, 121.

(9) It seems that the sale of the whole of a ship by one who is only a part owner, in exclusion of the right of another, who is te

The preceding case proceeded upon the principle that there was a destruction of the subject matter, and it is now established, that one tenant in common cannot recover for a chattel in trover against his companion, without first prov ing a destruction of the chattel, or something that is equivalent to it. Hence, where one of two tenants in common of a whale cut it up and expressed the oil, it was bolden', that such alteration in the form of the property did not amount to a tortious conversion, so as to enable the companion to maintain trover; for the act done was an application of the whale to the only purpose which could make it profitable to the owners, and tended to preserve it instead of destroying it, which one tenant in common was clearly entitled to do; and as the parties were clearly tenants in common of the whale, they became tenants in common of the produce, after it was converted into oil. N. It was admitted in this case, that the taking by the defendant, and the refusal to deliver on demand made, was not any misfeasance in a tenant in common, and did not give a right of action. It will be proper, however, to remark, that the rule that one tenant in common cannot bring trover against his companion, holds only in those cases where the law considers the possession of one to be the possession of both. Hence, where A. is tenant in fee of one fourth part of an estate, and B., tenant in common with him, of the other three parts for a term of years, without impeachment of waste, if A. cut down any trees, and B. take them away, A. may maintain trover; for though B., being dispunishable of waste, might cut down what trees he would, yet trees having an inheritable quality, and B. not having any interest in the inheritance, he cannot take the trees when felled by him who has the inheritance, and, consequently, his possession being tortious cannot be said to be the possession of the other.

It is to be observed also, that if one joint-tenaut, &c.. bring trover, without his companion, against a stranger, the defendant cannot give the joint-tenancy, &c. in evidence on the general issue, so as to bar the plaintiff of his action, but only to prevent him from recovering any more than his own share in the value of the property in question; for

r Fennings v. Ld. Grenville, 1 Taunt.

241.

s West v. Pasmore, at Exeter, per Turton J. Salk. MSS. Bull. N. P. 35.

t

Nelthorpe v. Farrington, 2 Lev. 113. Adm. in Baruardiston v. Chapman, C. B., H. T. 1 G. 1. cited in. 4 East, 121.

nant in common with him, is not equivalent to the destruction of the subject matter, mediately or immediately, so as to enable his co-tenant to maintain trover against him for it. 4 East, 110. See also Graves v. Sawyer, T. Raym. 15.

it is a general rule, that the defendant can avail himself of an objection of this sort, viz. that all the part-owners in a chattel have not joined in an action of trespass or tort, brought in respect of such chattel, by a plea in abatement only"; and if one of two part-owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, the other part-owner may afterwards sue alone, and the defendant cannot plead in abatement of such action. Trover will lie against a corporation'.

III. The Declaration-Plea-Defence, and herein of the Doctrine of Liens-Evidence-Of staying the Proceedings-Costs-Judgment.

Venue. THIS is a transitory action, and the venue may be laid in any county.

The declaration states, that the plaintiff was lawfully possessed of the goods in question (10), as of his proper goods and chattels (11), and that being so possessed, he casually lost them, and that they came to the hands and possession

u Bloxam v. Hubbard, 5 East, 420.

x Sedgworth v. Overend, 7 T. R. 279.

y Yarborough v. The Bank of Eug

.

land, B. R. Trin. T. 52 G. 3.

z Brown v. Hedges, Salk. 290.

(10) The goods in question should be described with such convenient certainty, that the jury may know what is meant, but in this action the same accuracy and precision are not required as in the action of detinue, which is for the recovery of the things themselves in specie, if to be had. Hence, a declaration în trover for twenty ounces of cloves and mace*, ten pair of curtains and valencet, for a parcel of diamonds, for the furniture, apparel, &c. belonging to such a ships, has been holden good.

(11) The omission of the words, "as of his proper goods," is cured by verdict, Jones v. Winckworth, Hardr. 111.; but fatal after . a judgment by default. Swallow v. Ayucliff, B. R. M. 2 G. 2. MSS...

VOL. II.

* Hartford v. Jones, Salk. 654.

+ Taylor v. Wells, 2 Saund. 74.

White v. Graham, Str. 327. Ld. Raym. 1530.
Nightingale v. Bridges, Carth. 131.

P P

of the defendant, by finding (12), who afterwards (15) con.verted(14) them to his own use.

This is the substance of the declaration in common cases. Where the action is brought by an executor, administrator, or the assignees of a bankrupt; the character in which the party sues must of course appear on the face of the declara

tion.

Care must be taken to state the possession to be in the person to whom the property belongs.

In an action of trover by the assignee of bankrupt partners, the declaration consisted of oue count only, in which the possession was stated to be in the partners. It appeared in evidence, that the greater part of the goods in question belonged to one of the partners only, before the commencement of the partnership, and had never been brought into the partnership fund. It was proved, that the residue of the goods was part of the joint estate. Per Kenyon C. J. the plaintiff under this declaration is entitled to recover the value of such goods only as have been proved to belong to both the partners as partners. Had there been a count in the declaration, stating the possession in the assignee, as a Cock, assignee of Kent and Pemberton, v. Tunno, London Sittings after H. T. 41 G. 3. B. R. Kenyon C. J. MSS.

(12) The conversion is the gist of the action, and the manner in which the goods came to the hands of the defendant is ouly inducement; and, therefore, the plaintiff may declare that the goods came to the possession of the defendant generally or specially, by finding, (though the defendant came to the goods by delivery,) or that the defendant fraudulently, at cards, won money of the plaintiff from the wife of the plaintiff.

(13) In the declaration the conversion was laid, under a scilicet, to be on a day before the trover§. Upon motion in arrest of judgment, the declaration was holden to be good, for the postea convertit is sufficient, and the scilicet is void.

(14) Though it be necessary to allege a day and place of conversion, (or of a request and refusal, which is tantamount¶,) yet as it is a transitory action, the conversion may be laid here, and proved in Ireland.