that if the first contract with warranty be broken off, the warranty will not extend to a subsequent sale.-Butterfield v. Burroughs, T. 1707. Salk. 211. cited in Hartop v. Hoare, 3 Atk. 44. It has been said, that if a married man pretend to be single, and marry J. S. she may bring an action to recover damages for the injury done her by his deceit; (Anon. 35 Car. 2. Skin. 119.) but such an action will not lie for a man who is imposed upon by a married woman, because the conversation and contract of the wife will not bind the husband. (Cooper v. Witham, M. 1668. 1 Lev. 247.) And it may be doubted in the other case, being felony by 1 Jac. as it is a general rule, that where a trespass is by statute turned into felony, the trespass is merged; (Proctor v. Bury, Hil. 17 Geo. 2. C. B.) though in the case of Garford v. Richardson, T. 36 Car. 2. the court of K. B. upon a motion in arrest of judgment in such an action brought by a woman, gave judgment for the plaintiff, holding the action to be maintainable (a). ing the horse unless he offer to return him before he bring the action. Caswell v. Coare, 2 Camp. 82. And the Court of C. B. reduced a verdict in which the keep had been included, contrary to the Chief Justice's direction. S. C. 1 Taunt. 566. A warranty of the soundness of a horse does not require a stamp, it being an agreement relating to the sale of goods. Skrine v. Elmore, 2 Camp. 407. and S. P. was ruled by Lawrence, J. at Devon assizes 1809, in Page v. Fry, ib. (a) The old cases on this subject were confined to fraudulent assertions by the contracting parties only, and did not extend to the wilful misrepresentations of strangers to the contract, and they proceeded upon the breach of a promise either express or implied, that the thing misrepresented was true, but a different doctrine now prevails, and for the first time it was decided in Pasley v. Freeman, H. 1789. 3 T. Rep. 51. that where a man, with a design to deceive and defraud another, who makes enquiry of him, falsely represents the matter enquired of, whereby an injury arises, this action will lie against the party making such false representation, though he be a stranger to the original contract. This case was elaborately argued, and on the argument a further question arose whether, admitting all the facts stated to be true, this action could be maintained, and Kenyon, C. J. Ashhurst, J. and Buller, J. held, that it could, but Grose, J. held contra. It is not necessary however to support this action, that the defendant should either himself derive an advantage from the deceit, or collude with the person who did derive a benefit; for if there be fraud, i. e. an intention to deceive, this action will lie, but not otherwise, therefore where a man incautiously represented circumstances to be within his own knowledge, which he could not have known, but had good reason to believe, it was held by Grose, Lawrence, and Le Blanc, J. contra Kenyon, C. J. that this action was not maintainable, Haycraft v. Creasy, 2 East, 92. A credit having been lodged with defendant by a foreign house, in favor of T. to a limited amount, on an express stipulation that goods should be previously lodged with defendant to treble that amount, and plaintiff having enquired of defendant the responsibility of T. to which he replied, he CHAPTER II. OF TROVER. (a) TROVER is a special action on the case, which one man may have against another, who hath in his possession any of his goods by delivery, finding or otherwise, or sells or makes use of them without his consent, or refuses to deliver them on demand; and it is for recovery of damages to the value of the goods; (b) and therefore the declaration ought he knew nothing of him, except what he had heard of him from his correspondent, but that a respectable credit had been lodged with him, which he held at the disposal of T. (not mentioning the previous stipulation) and that upon a view of all the circumstances which had come to his knowledge plaintiff might execute T.'s order with safety. It was held, that there was a material suppression of the truth on defendant's part, and sufficient evidence for the jury to find fraud, which was the gist of the action, though defendant added, when he made the representation that he gave the advice without prejudice to himself. Verdict for plaintiff. Eyre v. Durnford, 1 East, 318. So if A. fraudulently misrepresent the circumstances of B. in order to induce C. to give him credit, and add, "if he does not pay "for the goods I will." The court held, that this action might have been maintained against 4. even without the addition of the promise. Hamar v. Alexander, 2 Bos. and Pull. N. R. 241. (a) See the case of Wilbraham v. Snow, 2 Saund. 47. where the learned editor, Mr. Serjeant Williams, has obliged us with a very explanatory note on the nature, properties, and requisites of this sort of action. (b) And it differs from detinue inasmuch as detinue is brought for the thing itself, and trover for its value in damages. Hartford v. Jones, 3 Salk. 654. Trover is a fictitious action in form but not in substance. Hambly v. Trott, Cowp. 371, and supposes a loss by the plaintiff of his personal goods, and not only a finding of them by defendant, but a tortious conversion of them to his defendant's use, for that is the gist of the action. To maintain trover there are four requisites: 1. An absolute or special property in the plaintiffs (but not both) when the defendant took and converted the goods, i. e. An absolute possession, and an exclusive right of enjoyment in him till defeated by some act of his own. (Per Lawrence, J. in Webb v. Fox, 7 T. Rep. 398.) or that special property which a possessor has subject to the claims of others. Armory v. Delamirie, 1 Stra, 505. 2. A right of possession in the goods. For though a property without possession, or possession without property, will do, yet a right in both must concur. Vide Lord Cullen's Case, post, p. 33. Hudson v. Hudson, Latch. 214. and Gordon v. Harper, 7 T. Rep. 9. 3. That the goods were personal. For trover lies not for any thing affixed to the freehold. Per Kenyon, in Webb v. Fox, sup. 4. That the defendant's conversion was wrongful. For that it is which forms the gist of the action. Fuller v. Smith, 3 Salk. 366. and therefore, it is, that if a man finds the goods which he had lost in the hands of, another who bought them in open market, or at a fair, the property is altered, and he cannot recover them, 1 Inst. 498. 1 Danv. 23. to to contain convenient certainty in the description of the things, so that the jury may know what is meant thereby; but it need not contain so much certainty as an action of detinue, because that is for the recovery of the things themselves, and therefore trover for 20 ounces of cloves and mace has been holden good. (Hartford v. Jones, M. 10 W. 3. Salk. 654.) So for a parcel of diamonds.—White v. Graham, H. 2 Geo. II. Str. 827. (a) * If a gentleman lodge jewels sealed up in a bag with a banker for safe [33] custody only, and the banker break open the bag, and pawn the jewels to another, the gentleman may bring trover against the pawnee, for he shall not be answerable for the deceit of the banker, as he gave him not power to do that act in which the deceit lies; and therefore it differs greatly from the case taken notice of in the last chapter, of the merchant answering for the deceit of the factor.-Hartop v. Hoare, E. 16 Geo. 2, 2 Stra. 1167. 1 Wils. 8. (b) The conversion is the gist of the action, and the manner in which the goods came to the hands of the defendant is only inducement: and there. fore the plaintiff may declare upon a devenerunt ad manus generally, or specially per inventionem, (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; and this being but inducement, need not be proved; but it is sufficient to prove property in himself, pos (a) So for 400 pieces or ends of boards. Knight v. Barker, 2 Raym. 1219. So for a piece of tepee. v. Rudge, 2 Stra. 738. Radley So for a dog, which cannot be detained for his keep. Binstead v. Buck, 2 Bla. 1117. Et vide Nicholson v. Chapman, 2 H. Bla. 256. So for whelps, where a man has a property in the bitch. Chambers v. Warkhouse, 3 Salk. 140. So for a gelding on a count for a horse. Gravely v. Ford, 2 Raym. 1209. So for a bond. Arnold v. Jeffery. son, Salk. 654. So for a bill of exchange. Lucas v. Haynes, Salk. 130. So for a bank bill against a finder, but not against his assignee. Anon. 1 Salk. 126. So for the title deeds of an estate. Yea v. Field, 2 T. Rep. 708. So for the exemplification of let ters patent. Jones v. Winckworth, Hard. 111. doubted) because damages only are So for money (though formerly to be recovered. Anon. 1 Stra. 142. So for old iron generally, but this is good only after verdict. Talbot v. Spear, Willes, 70. So for a suit of child-bed linen, Helyng v. Jennings, 1 Raym. 133. and a muff, good after verdict. wrappers, and cords, and no objecSo for a parcel of pack-cloths, tion to the uncertainty of the word "parcel" after judgment by default. Bottomley v. Harrison, 2 Stra. 809. 2 Raym. 1529. Vide etiam Hartford v. Jones, sup. S. P. (b) Reported fully in 3 Atk. 44. session session to have been in the defendant, and a conversion by him.-I Dano. 23. Fuller v. Smith, M. 8 W.9. 3 Salk. $66. (a) (a) In trover at Nisi Prius, cor. Holt, C. J. A carpenter sent his servant to work for hire at the Queen's yard; having been there some time, he refused to go again, on this the surveyor kept his tools, pretending an usage to detain tools to force workmen to continue till the Queen's work was done. A demand and refusal being proved at one time, and a tender and refusal after, Holt, C. J. said, the very denial of goods to him who has a right to demand them is an actual conversion, and not evidence of it only, as hath been holden. For what is conversion but an assuming upon oneself the property and, right of disposing of another's goods, and he that takes upon himself to detain another's goods without cause, takes upon himself the right of disposing of them. So the taking and carrying away another's goods is a conversion. So if one come into my close, and take my horse, and ride him, it is a conversion. And here, if the plaintiff had received them upon tender, the action would lay, notwithstanding upon the former conversion, and the having the goods after, would go only in mitigation of damages; (Baldwin v. Cole, 6 Mod. 212.) ergo a temporary conversion will support trover, though defendant do not claim the absolute property. This last case was recognized by Ellenborough, C. J. in MCombie v. Davies, 6 East, 540, where it was held, that taking an assignment of tobacco in the king's warehouse, by way of pledge, from a broker who had purchased it in his own name for his principal, and refusing to deliver it to the principal after notice and demand by him (none other than he in whose name it is warehoused being able to take it) is a conversion. But where defendant took plain tiff's boat to assist him in a state of danger, and the boat sunk, this is In not an illegal conversion. Drake v. Shorter, 4 Esp. N. P. C. 165. So for taking five oxen by defendant's bailiff, who was dead, defendant insisted that plaintiff should have brought trespass, and not trover; sed per cur. He might bring either. Bishop v. Montague, Cro. Eliz. 824. Cro. Jac. 50. S. C. So where a tenant for life pawned plate, it was held, that the pawnbroker could not hold it against the remainder-man, though he had no notice of the pawner's interest in it. Hoare v. Parker, 2 T. Rep. 376. Yet if goods be obtained from A. by fraud, and pawned to B. without notice, and A. prosecute the offender to conviction, and get possession of his goods, B. may maintain trover for them. Parker v. Patrick, 5 T. R. 175. But in felony, where the owner's right of restitution being positively given by 21 H. 8. c. 11. trover will not lie. Horwood v. Smith, 2 T. R. 750. Trover against a pawnbroker for goods pledged with him, which had been stolen. It appeared that the goods in question were stolen from the house of the plaintiff, and had been pawned by a woman named Brown, but that she had been tried for the felony and acquitted, on account of the absence of a material witness. Lord Ellenborough held, that the action well lay. Packer v. Gillies, 2 Camp. 336. (n.) Sed vido Parker v. Patrick, supra. Trover will lie by the owner of a ship against a purchaser from the master, unless the vendee can shew urgent necessity for the sale. Hayman v. Molton, 5 Esp. N. P. C. 65. In trover for a bill of sale of onefourth part of a ship, the plaintiff not being able to prove a demand and a refusal, prior to the commencement of his suit, offered to shew that defendant had actually sold the ship, and contended, that In the declaration the conversion was laid to be on a day before the trover; wherefore a motion was made in arrest of judgment, but the declaration was holden to be good, for the Postea convertit is sufficient, and the viz. is void.-Tesmond v. Johnson, T. 1617. Cro. Jac. 428. As to the property, a special one is sufficient, and therefore this action may be brought by a carrier or bailee; or by a finder, for that will enable him to keep the thing against all but the rightful owner.-Wilbraham v. Snow, H. 21 & 22 Car. 2. 1 Mod. 31. Armory Armory v. Delamirie, H. 8 Geo. 1. 1 Str. 505. A sheriff who has taken goods in execution may bring trover for them, if they were taken away before the sale.-Wilbraham v. Snow, H. 21 & 22 Car. 2. 2 Saund. 47. 1 Lev. 182. 1 Vent. 52. 1 Mod. 80. 2 Keb. 588. (a) If an house be blown down and a stranger take away the timber, the lessee for life may bring trover; for he has a special property to make use of the same (as if he would rebuild) though the general property be in the reversioner.-Per Powel, J. on Midland Circuit, Salk. MSS. A lord who seizes an estray or wreck, may, before the year and day expired, maintain trover against a stranger; for he has more than a possession, viz. a possession that will turn into a property.—Sir William Courtney's Case, C. B. Salk. MSS. Pye v. Pleydel, Berks. 1750. Per Clarke, Bar. S. P. this being a conversion in fact, rendered it unnecessary to prove a demand and refusal. And Lord Kenyon said, that as the action was for the bill of sale, and not for the ship itself, this was no conversion, for by possibility it might happen, that one person should be entitled to the bill of sale, and another to the ship, and therefore nonsuited the plaintiff. Lee v. Wilkinson, Sittings after Hilary, 30 Geo. 3. MS. Ca. If A. indorse a bill drawn in his favor, and accepted, and give it to B. to negociate, and B. give it to C. who delivers it to D. without consideration, 4. may maintain trover against D. for it, though it be two years over due. Goggerley v. Cuthbert, 2 Bos. and Pull. N. R. 170. And in trover on bills of exchange the exchequer chamber allowed interest from the date of the final judgment on all such bills as had been received before judgment, and from the time of the receipt on all such as had been received afterwards. Atkins v. Wheeler, 2 Bos. and Pull. N. R. 205. Trover lies not for goods condemned by a foreign court having competent jurisdiction. Hughes v. Cornelius, T. Raym. 473. Skin. 59. Sed secus, where a court has only a limited jurisdiction. Papillon v. Buckner, Hardr. 478. Terry v. Huntingdon, ibid. 480. See further as to what amounts to a conversion and evidence thereof, post, p. 44 (a.) n. (b.) (a) So if a party pay money to redeem his goods from a wrongful distress for rent, he may maintain trover against the wrong-doer. Shipwick v. Blanchard, 6 T. R. 298. but trover lies not for goods irregularly sold under a distress. Wallace v. King, 1 H. Bla. 13. And |