to rely on this flaw in the plaintiff's title proved by herself.
In this case,
however, the point raised in the principal case of the distinction between
peaceable and forcible possession does not seem to have been referred to.
It may be that there is a distinction between permitting a defendant who
is a wrongdoer to set up a ius tertii on his own account, and merely
allowing him to take advantage of such a flaw if incidentally established
by the plaintiff himself. This would also explain the case of Doe d. Crisp v.
Barber'. If not, these cases are in direct conflict with the principal case,
and it is submitted that the reasoning of the latter case should prevail.
As to the case of Nagle v. Shea: it will be seen from the report of the case
in the Court of Exchequer Chamber (which seems to have escaped attention)
that the only point really decided, and open to the plaintiff on appeal, was
as to whether the existence and contents of a will had been duly proved.
Upon the point which was discussed in the lower Court, viz. whether
a defendant, who is a mere wrongdoer, can force a plaintiff whom he has
ousted to show title other than possession at the date of the ouster-and
thus incidentally be enabled to set up ius tertii-the Court of Exchequer
Chamber gave no decision, but it is evident from remarks contained in the
judgements that had they given a decision on the point it would have been
against the defendant. This case, therefore, can hardly be treated as
a decision either way.

On the other hand it seems that the American authorities support the view above set out: see Greenleaf on Evidence, fifteenth edition, s. 331; Newell on Ejectment (1892), p. 434, s. 15.

The view expressed in this and the preceding note that the real explanation which lies at the root of these cases is that possession obtained by force or fraud, not acquiesced in, is not regarded as legal possession at all as against the party dispossessed, is further reinforced by the fact that the latter can bring an action of trespass q. cl. f. against the intruder: see Browne v. Dawson, supra-a form of action which requires the plaintiff to be in possession at the time of action brought.-[ED.]

1 2 T. R. 749.

1857.

DAVISON

V.

GENT.

U

1796.

GORDON

v.

HARPER.

TRESPASS TO GOODS AND CONVERSION.

1796. GORDON v. HARPER, 7 T. R. 9.

In order to maintain trover the plaintiff must have both a right of property in the chattel and a right to the immediate possession. A reversioner therefore cannot sue in trover; neither can he sue in trespass, as he is not in possession.

IN trover for certain goods, being household furniture, a verdict was found for the plaintiff, subject to the opinion of this Court on the following case. On October 1, 1795, and from thence until the seizing of the goods by the defendant, as after mentioned, Mr. Biscoe was in possession of a mansion-house at Shoreham and of the goods in question, being the furniture of the said house, as tenant of the house and furniture to the plaintiff, under an agreement made between the plaintiff and Mr. Biscoe, for a term which at the trial of this action was not expired. The goods in question were on October 24 taken in execution by the defendant, then sheriff of the county of Kent, by virtue of a writ of testatum fieri facias issued on a judgement at the suit of J. Broomhead and others, executors of J. Broomhead deceased, against one Borret, to whom the goods in question had belonged, but which goods, previous to the agreement between the plaintiff and Mr. Biscoe, had been sold by Borret to the plaintiff. The defendant after the seizure sold the goods. The question is, whether the plaintiff is entitled to recover in an action of trover.

LORD KENYON, C. J.-The only point for the consideration of the Court in the case of Ward v. Macauley1 was, whether in a case like the present the landlord could maintain an action of trespass against the sheriff for seizing goods, let with a house, under an execution against the tenant; and it was properly decided that no such action could be maintained. What was said further by me in that case, that trover was the proper remedy, was an extrajudicial opinion, to which upon further consideration I cannot subscribe. The true question is, whether when a person has leased goods in 1 1 4 T. R. 489.

v.

HARPER.

Lord

C. J.

a house to another for a certain time, whereby he parts with the 1796. right of possession during the term to the tenant, and has only GORDON a reversionary interest, he can notwithstanding recover the value of the whole property pending the existence of the term in an action of trover. The very statement of the proposition affords an answer Kenyon, to it. If, instead of household goods, the goods here taken had been machines used in manufacture which had been leased to a tenant, no doubt could have been made but that the sheriff might have seized them under an execution against the tenant, and the creditor would have been entitled to the beneficial use of the property during the term: the difference of the goods then cannot vary the law. The cases which have been put at the bar do not apply: the one on which the greatest stress was laid was that of a tenant for years of land whereon timber is cut down, in which case it was truly said, that the owner of the inheritance might maintain trover for such timber, notwithstanding the lease. But it must be remembered that the only right of the tenant is to the shade of the tree when growing, and by the very act of felling it his right is absolutely determined; and even then the property does not vest in his immediate landlord; for if he has only an estate for life, it will go over to the owner of the inheritance. Here however the tenant's right of possession during the term cannot be devested by any wrongful act, nor can it thereby be revested in the landlord. I forbear to deliver any opinion as to what remedy the landlord has in this case, not being at present called upon so to do: but it is clear that he cannot maintain trover.

ASHHURST, J.-I have always understood the rule of law to be, that in order to maintain trover the plaintiff must have a right of property in the thing, and a right of possession, and that unless both these rights concur the action will not lie. Now here it is admitted that the tenant had the right of possession during the continuance of his term, and consequently one of the requisites is wanting to the landlord's right of action. It is true that in the present case it is not very probable that the furniture can be of any use to any other than the actual tenant of the premises: but supposing the things leased had been manufacturing engines, there is no reason why a creditor seizing them under an execution should not avail himself of the beneficial use of them during the term.

1796.

GORDON

V.

HARPER.

GROSE and LAWRENCE, JJ., delivered judgement to the same effect.

Postea to the defendant.

NOTE.-In Mears v. The London and South-Western Railway Company (1862)1, it was held that a reversioner may bring an action on the case for any permanent injury to chattels of which he is the owner.

It may be noted that for practical purposes a right of property in a chattel sufficient to maintain trover is sufficiently evidenced by proving either the right to the immediate possession of the chattel, i. e. title or the fact that the chattel was in the actual possession of the plaintiff (e. g. as bailee) at the time of the conversion: see the next case, and the notes to Jeffries v. Great Western Railway Company, and Fouldes v. Willoughby, infra.-[ED.]

8 Geo. I.

DELAMIRIE.

8 Geo. I. ARMORY V. DELAMIRIE, I Stra. 505; cor. Pratt, C. J.

The finder of a chattel has a sufficient property therein to maintain trover against a wrongdoer.

Omnia presumuntur contra spoliatorem.

The plaintiff, being a chimney-sweeper's boy, found a jewel and ARMORY carried it to the defendant's shop (who was a goldsmith) to know บ. what it was, and delivered it into the hands of the apprentice, who under pretence of weighing it took out the stones, and calling to the master to let him know it came to three-halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled:

1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.

2. That the action will lay against the master, who gives a credit to his apprentice, and is answerable for his neglect.

3. As to the value of the jewel, several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth; and the chief justice directed the

1 II C. B. (N. s.) 850; 31 L. J. (C. P.) 220.

jury, that unless the defendant did produce the jewel, and show 8 Geo. I. it not to be of the finest water, they should presume the strongest ARMORY against him, and make the value of the best jewels the measure of their damages: which they accordingly did.

NOTE. It is important to notice the limited application of this case. As against the rightful owner the mere finder has not only no right to retain possession of the thing found, but may even be convicted of larceny of it under certain circumstances. Thus in Merry v. Green (1841)1 a man purchased a bureau which contained in a secret drawer a purse and money. This was unknown to either vendor or purchaser, though the articles would appear to have been the property of the vendor. The Court held that the purchaser was in no better position than a mere finder, and would be guilty of larceny if, upon discovery of the property, being aware that the true owner could be found, he converted it to his own use; unless he had bought, or thought he was buying, the bureau together with its contents.

The statement in the judgement in this case that-though there was a delivery of the bureau, and a lawful property therein thereby vested in the purchaser-there was no delivery so as to give a lawful possession of the 'purse and money' must, it would seem, mean that he has no lawful possession as against the true owner (and it was with the purchaser's right as against him that the Court was alone concerned), for doubtless the purchaser could have maintained trespass against any one who had disturbed his possession otherwise than under the authority of the true owner.

In cases where chattels are included in or lying upon land, it would seem that possession of the land carries with it a lawful possession of such chattels as against all but the true owner, even although their existence may be unknown. The finder of them then must give them up to the possessor of the land: Elwes v. Brigg Gas Company (1886) 2; South Staffordshire Water Company v. Sharman (1896) 3. The case of Bridges v. Hawkesworth (1851)* confirms rather than conflicts with this view: for the banknotes in that case, being found in a public part of the shop, were treated as if they had been picked up in a public street: see M'Avoy v. Medina (1866) 5. It is submitted that the possessor of a chattel has, upon the analogy of the case of land, a possession of its contents, though their existence may be unknown, and that he can maintain trespass or trover with respect to them against any person other than the true owner or those claiming through him. Thus if A, the true owner of a bureau and its contents, unwittingly delivers both under a contract of sale to B, not intending to part with more than the bureau, and B similarly delivers them to C, and D finds and takes the contents, C as being possessor could maintain trespass or trover against D, and A as true owner entitled to the immediate possession could maintain trover and probably trespass (see Br. Abr. 288, pl. 303) against D; but B,

V.

DELAMIRIE.