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WARD V. MACAULEY.
KING's BENCH. 1791.

[Reported 4 T. R. 489.) THE plaintiff was the landlord of a house, which he let to Lord Montfort ready furnished ; and the lease contained a schedule of the furniture. An execution was issued against Lord Montfort, under which the defendants, sheriff of Middlesex, seized part of the furniture, notwithstanding the officer had notice that it was the property of the plaintiff. For this the plaintiff brought an action of trespass against the defendants. At the trial Lord Kenyon thought that trespass would not lie, and that the plaintiff should have brought trover. A verdict, however, was taken for the plaintiff for value of the goods, with liberty to the defendants to move to enter up a nonsuit if this court should be of opinion that the plaintiff could not recover in this form of action.

Mingay obtained a rule for that purpose on a former day; against which

Erskine now showed cause.

LORD KENYON, Ch. J. The distinction between the actions of trespass and trover is well settled ; the former is founded on possession, the latter on property. Here the plaintiff had no possession ; his remedy was by an action of trover founded on his property in the goods taken. In the case put of a carrier, there is a mixed possession : actual possession in the carrier, and an implied possession in the owner.

BULLER, J. The carrier is considered in law as the servant of the owner, and the possession of the servant is the possession of the master. PER CURIAM,

Rule absolute.

GORDON V. HARPER.
King's BENCH. 1796.

(Reported 7 T. R. 9.] In trover for certain goods, being household furniture, & verdict was found for the plaintiff, subject to the opinion of this court on the following case : On October 1st, 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 es. pired. The goods in question were on the 24th of October 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 judgment at the suit of J. Broomhead and others, executors of J. Broomhead deceased, against one Borrett, 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 Borrett 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.

Burrough, for the plaintiff.
Best, contra.

LORD Kenyon, Ch. J. The only point for the consideration of the court in the case of Ward v. Macauley 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 a house to another for a certain time, whereby he parts with the right of possession during the term to the tenant, and has only 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 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 riglt 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.

GROSE, J. The only question is, whether trover will lie where the plaintiff had neither the actual possession of the goods taken at the time nor the right of possession. The common form of pleading in such an action is decisive against him ; for he declares that being possessed, &c. he lost the goods; he is therefore bound to show either an actual or virtual possession. If he had a right to the possession, it is implied by law. Where goods are delivered to a carrier, the owner has still a right of possession as against a tort-feasor, and the carrier is no more than his servant. But here it is clear that the plaintiff had no right of possession; and he would be a trespasser if he took the goods from the tenant. Then by what authority can he recover them from any other person during the term ? It is laid down in some of the books (Vid. 1 Bac. Abr. 45, and 5 Bac. Abr. 257, 2 Com. Dig. tit. Detinue, letter D.) that trover lies where detinue will lie, the former having in modern times been substituted for the old action of detinue. I will not say that it is universally true that the one action may be substituted for the other, because the authorities referred to in support of that proposition do not apply to that extent; but certainly it may be said to be a good general criterion. But it is clear in this case that detinue would not lie, because the plaintiff had no right to the possession of the specific goods at the time. And if not, it is a strong argument to show that trover, which was substituted in lieu of it, cannot be maintained by the present plaintiff. Much stress has been laid on what was said in Ward v. Mucauley. But the only question there was, whether trespass would lie under these circumstances; and it was not necessary to determine how far trover might be maintained. It appears now very clearly upon examining that point that trover will not lie in any case, unless the property converted was in the actual or implied rightful possession of the plaintiff. In this case the plaintiff had neither the one nor the other pending the demise, and when that is determined perhaps he may have his goods restored to him again in the same state in which they now are, when it will appear that he has not sustained that damage which he now seeks to recover in this action.

LAWRENCE, J. The observation which my brother Grose has made upon the form of the action of trover is very material ; the plaintiff therein states that he was possessed of the goods mentioned, and being so possessed he casually lost them, and that they came to the hands and possession of the defendant by finding. And the principal difficulty in most of the cases reported upon this head has been, whether the plaintiff had such a possession whereon he could declare in this action; as in Latch, 214, where the plaintiff, as executor, declared upon the possession of his testator, and the court held that to be sufficient, because the property was vested in the executor; and no other person having a right to the possession, the property drew after it the possession in law. In Berry v. Heard, Palm. 327. and Cro. Car. 242, it was for a long time in great doubt, whether the landlord had such a possession of timber cut down pending a lease on which he could maintain trover; but it was finally determined that he had, because the interest of the lessee in it remained no longer than while it was growing on the premises, and determined instantly when it was cut down. Now here if the taking of the goods by the sheriff determined the interest of the tenant in them, and revested it in the landlord, I admit that the latter might maintain trover for them upon the authority of the other case ; but it is clearly otherwise ; for here the tenant's property and interest did not determine by the sheriff's trespass, and the tenant might maintain trespass against the wrong-doer, and recover damages. He is bound to restore the goods to the landlord at the end of his term, and could not justify his not doing so because a stranger had committed a trespass upon him in taking them away. Postea to the defendant.

LOTAN v. CROSS.

Nisi Prius. 1810.

[Reported 2 Camp. 464.] TRESPASS for running against the plaintiff's chaise.

It appeared that the plaintiff, a stable-keeper, was owner of the chaise ; but that when the injury was done, it was in the possession of one Brown, a friend of his, whom he had permitted to use it.

The objection being taken that trespass could not be maintained by the plaintiff under these circumstances,

LORD ELLENBOROUGH said : The property is proved to be in the plaintiff, and prima fucie the thing is to be considered in his legal possession, whoever may be the actual occupier. Show a letting for a certain time to Brown, and the possession would be in him ; but a mere gratuitous permission to a tlfird 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. Vide

Smith v. Milles, 1 T. R. 480; Ward v. Macauley, 4 T. R. 489; Gordon v. llarper, 7 T. R. 9.

The witnesses stated that the defendant seemed to have no intention of running his carriage against the plaintiff's chaise; and that the

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accident appeared to arise entirely from the negligent manner in which the defendant was driving.

Park thereupon objected that the action should have been case and not trespass.

LORD ELLENBOROUGH. The injury to the plaintiff being immediate from the act done by the defendant, it was settled in, Leame v. Bray, 3 East, 393, that trespass is the proper remedy, and that the defendant's intentions were immaterial.

Verdict for the plaintiff'.

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Park, in the ensuing term moved for a new trial on the ground that the action was misconceived; and stated that Leame v. Bray had been overruled by the court of C. P. in Huggett v. Montgomery, 2 N. Rep. 446.

CURIA. If we are desired to review the case of Leame v. Bray, the matter should be brought before us in a different shape than a motion for a new trial. We do not entertain so slight an opinion of our own judgment as to allow it to be thus canvassed. We will wait for some case where the question is raised upon the record, and may be carried farther.

Rule refused.

SMITH v. SHERIFF OF MIDDLESEX.

King's BENCH. 1812.

(Reported 15 Erst, 607.] This was an action of trespass and conversion against the sheriff, for taking and carrying away certain goods of the plaintiff, being different articles of household furniture. At the trial before Lord Ellenborough, C. J., at Westminster, it appeared that the plaintiff, a tradesman, bad supplied the goods in question to one Mary Anne East, who, according to the entry in the plaintiff's books, was to pay him for the hire of them at the rate of £20 per cent per annum upon the value ; but according to the evidence of Mrs. East herself, the goods had been recently put into her house by the plaintiff, for the hire of which she was to pay him ; but at the time of the taking and conversion complained of, no contract had been made between them either for any precise time or for any certaip sum. Mrs. East was a married woman living at that time apart from her husband under a deed of separation ; which was known to the plaintiff when he furnished her with the goods; and the sheriff entered and levied upon these goods by virtue of a writ of execution at the suit of a creditor of the husband. Before the sale by the sheriff, notice was given to him by the plaintiff, that the goods taken in execution were his property; and he claimed to bave them restored to him. The plaintiff recovered a verdict for the value, with leave to the defendant to more to set it aside and enter a nonsuit, if the action were not

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