whom they belong. Laclouch v. Towle, ubi supra.

7. Defendant picked up a pocketbook containing four bank notes, amounting to 951. which had been delivered out by a banker's clerk, in exchange for a cheque payable to the plaintiffs, or bearer. Held, that in the absence of any evidence of the cheque having been once negociated, and of any claim to the notes on the behalf of other persons, it must be presumed that they were the property of the plaintiffs. Richard and John Greenstreet v. Carr, 1 Campb. 551. Mansfield, C. J. 1808.

8. Lead is sent to a wharf in Southwark by the owner, to be kept there till he shall dispose of it. The wharfinger, who is also a dealer in lead, sells it as his own. This is not such a sale in market overt as changes the property; and trover may therefore be maintained against a bona fide vendee. Wilkinson

And see Y. B. 22, E. 4, fo. 10; Berry v. Head, Cro. Car. 242; S. C. v. King and others, 2 Campb. 335. ElPalm. 327; S. C. W. Jon. 255; Be-lenborough, C. J. 1809. dingfield v. Onslow, 3 Lev. 209; Pyne 9. And semble, that it would have v. Dore, 1 T. R. 155; 2 Wms. Saund. made no difference if the wharf had 47, a, b, note 1; Davies v. Connop, 1been in London. Ibid. Price, 55; ante, SHIP, pl. 95, 98, 114, 120, 124, 126; TRESPASS, pl. 17, 18. 2. In trever for a ship, if the plaintiff produce the original register, and attempt unsuccessfully to deduce a title under it, he cannot afterwards rely upon his possession. Sheriff v. Cadell, 2 Esp. 617. Kenyon, C. J. 1797.

And see ante, BILLS AND NOTES, I. (a) pl.,294.

10. If goods stolen be pawned, the property is not changed even in London. Packer v. Gillies, 2 Campb. 336, n. Ellenborough, C. J. 1806.

Acc. 35 H. 6, 25 b, where this point is fully considered by the twelve judges. And see Plowd. 243; 1 Jac. I. cap.

21.

11. A. exchanges a watch for goods falsely warranted silver. He cannot, 3. Trover lies for part of a ship. without proof of fraud, maintain trover Watson and wife, administrators of for the watch. Emanuel v. Dane, 3 Maxwell, v. King, 4 Campb. 272, and Campb. 299. Ellenborough, C. J. 1812. 1 Stark. 121. Ellenborough, C. J. 1815. S. P. Power v. Wells, Dougl. 24, n. 4. A custom for calico-printers to take to their own account goods damaged in the process, cannot alter the property in such goods without the consent of the owner. Laclouch v. Towles, 3 Esp. 114 Kenyon, C. J. 1800.

12. The indorsee of an unstamped bill of lading, a purchaser under a party who has paid for the goods by an unexpired acceptance, may prove his title by parol. Davis v. Reynolds, 1 Stark. 115. Ellenborough, C. J. 1815.

5. A carrier cannot set up a title in a 13. A bank note is paid by A. to B. stranger to defeat the right of the party and by B. to C., who presents it at the from whom he receives goods. Anony-bank, where it is stopped. A., after mous, 3 Esp. 115. Gould, J. Maid-paying the amount to C., cannot maintain trover against the bank. Benjamin Acc. Y. B. 7, H. 6, 22, pl. 3; and v. Bank of England, 3 Campb. 417. see ante, LITERARY PROPERTY, pl. 7. Ellenborough, C. J. 1813. 6. But he may shew that they were 14. An assignment executed by felon sent to the plaintiff by a third person to a fortnight before his trial, purporting

stone.

And see Dufresne v. Hutchinson, 3 Taunt., 117, 8; Syeds v. Hay, 4 T. R.

to be in trust to pay debts, will not en-
title the assignee to recover, without
proof of debts, or a bond fide considera- 263.
tion. Shaw v. Bran, 1 Stark. 319.
Ellenborough, C. J. 1816.

20. Secus, where he loses the goods. Ibid.

And see Ross v. Johnson, 5 Burr. 2825; 2 Saund. 47, e.

15. A. sells wool to B. payable by bill at nine months, and B. resells to C. The wool had been weighed off, but re- 21. A demand in writing left at the mained in A.'s warehouse until B. be-house of the party, is sufficient. Logan came bankrupt. The bill had never v. Houlditch et alt. 1 Esp. 22. Kenbeen drawn, but samples had been de-yon, C. J. 1793. livered. Held, that there is an executed 22. A demand of " the amount of the contract, and the property vested in C. goods which you have disposed of," is Green and another v. Haythorne and sufficient. Thomson, assignee of Abraothers, 1 Stark. 447. Ellenborough, C. hams, v. Shirley and Body, 1 Esp. 31. Kenyon, C. J. 1793.

J. 1816.

N. The court seemed inclined to grant a new trial, but refused on the ground that A. on receiving C.'s order for delivery had given no answer, and lain by until the bankruptcy of B. Ibid.

B. CONVERSION BY DEFendant. (And see ante, TRESPASS, pl. 19.) 16. The removal of goods, after a secret act of bankruptcy, is not purged by

S. P. Rookeby's case, Clayton, 122, pl. 114.

23. And an action of trover brought upon a conversion of goods by a tortious sale, may be described in pleading, as an action prosecuted to recover the particular sum for which the goods were sold. Batchellor and another v. Salmon, 2 Campb. 525. Ellenborough, C. J. 1810.

And the court of K. B. refused a rule a subsequent notice not to sell. Wyatt for a new trial. Ibid.

and another, assignees of Sheppard, v. 24. A refusal by a general agent, Blades and another, late sheriff of Mid-without proof of special direction, is dlesex, 3 Campb. 396. Ellenborough, not evidence of a conversion by the C. J. 1813.

17. A warehouseman delivering goods upon a forged order is liable in trover, although the owner has neglected the means of recovering the property from the tortious possessor. Lubbock and others v. Inglis, 1 Stark. 104. Ellenborough, C. J. 1815.

And see ante, ASSUMPSIT, pl. 64. 18. Delivery of goods by a carrier to a stranger by mistake, is a conversion. Youl v. Harbottle, Peake, 49. Kenyon, C. J. 1791.

S. P. Samuel v. Darch and others, 2 Stark. 60. Ellenborough, C. J. 1817.

principal. Pothonier and Hodgson v. Dawson, Holt, 383. Gibbs, C. J. 1816.

25. A refusal to a party who makes the demand on the behalf of a third person, on the ground that the holder of the goods does not know to whom they belong, is not evidence of a conversion. Solomons v. Dawes, 1 Esp. 83. Kenyon, C. J. 1794.

Acc. per Coke, C. J. 2 Bulst. 312.

26. Nor if the holder refuse to deliver them until the claimant shall have proved his right. Green v. Dunn, 3 Campb. 215. Ellenborough, C. J. 1811.

27. Nor if he state, that he is not sa19. In Devereux and others v. Barclay tisfied with respect to the authority of and another, the plaintiffs were non- the person who makes the demand. suited on the ground that the conversion Solomons v. Dawes, ubi supra.

relied on was a misdelivery by vendors, 28. A. mortgages an unfinished house who, from the length of time which had to B. who works up some timber found elapsed since the sale, were considered on the premises belonging to C. This as having acquired the character of is a conversion, for which B. remains warehousemen. Abbott, C. J. Guild- liable to C. even after eviction. liams v. Shaw, 1 Esp. 93. Kenyon, C.

hall, 19 January, 1819.

But see proceedings on motion to set J. 1794. aside nonsuit, APPENDIX.

Wil

29. Trover will not lie against a

workman, who, upon being required to proved without producing the latter. redeliver goods, makes frivolous excuses, Smith, assignee of Tenant, v. Young, 1 and falsely denies that he has them in Campb. 439. Ellenborough, C. J. 1808. his possession. Severin v. Keppell, 4 38. Evidence of the contents of a Esp. 156. Ellenborough, C. J. 1802. written demand, is admissible without 30. If B. take A.'s boat for the pur-notice to produce the original. Hampose of assisting A., or of preventing an mond and another v. Plank, Peake, 166, injury which he is about to occasion to n. Kenyon, C. J. 1796. B.'s property, and in the attempt the boat is lost, it is not an illegal conversion. Drake v. Shorter, 4 Esp. 165. Ellenborough, C. J. 1802.

39. Proof that the defendant expressed his intention to withhold the chattel, but that it was not under his complete control at the time of the demand, is 31. The sale of goods under a com- not evidence of a conversion. Smith v. mission of bankrupt, which has impro-Young, ubi supra. perly issued, does not amount to a 40. A bailee of goods deposited to wrongful conversion, if it appear that secure the repayment of a loan, may the supposed bankrupt recommended a sell in case of non-payment. Pothonier broker for the purpose of selling the and Hodgson v. Dawson, Holt, 383. effects, and expressed himself perfectly Gibbs, C. J. 1816. satisfied with the commission. Clarke v. Clarke and Brown, 6 Esp. 61. Heath, J. Chelmsford, 1806.

And see 2 Saund. 47, i.

And see ante, AsSUMPSIT, pl. 38; STOPPAGE IN TRANSITU, pl. 25.

41. Trover lies after demand against pawnbroker for cloth delivered by plain32. Goods are sent to a carrier to be tiff to his agent for the purpose of sale, forwarded to J. S. The carrier falsely and by him pawned, without production asserts that he has delivered them to J. of the duplicate, notwithstanding 39 & S. This is not evidence of a conver-40 Geo. ÌII. c. 99. s. 5, 15. Peet v. sion. Attersol v. Briant, 1 Campb. 409. Baxter, 1 Stark. 472. Ellenborough, Ellenborough, C. J. 1808. C. J. 1816.

33. A warehouseman acknowledges in writing that he held goods on account of a purchaser. He cannot refuse to deliver them on the ground that the sale is incomplete. Stonard v. Dunkin, 2 Campb. 344. Ellenborough, C. J. 1810. And see F. N. B. 138 M.

34. A warehouseman delivering goods to the party from whom he received them without notice of an intermediate change of property, is not liable in trover. Townsend and others v. Inglis, Reed, Irving, and Co. Holt, 278. Gibbs,

42. A party whose lands are incumbered by a block of stone, is only justified in removing to a convenient distance. Forsdick v. Collins, 1 Stark. 173. Ellenborough, C. J. 1816.

43. No demand is necessary where there has been an actual conversion. Ibid.

44. Goods distrained by landlord and sold, without collusion, to plaintiff, who was trustee for the creditors of E. and left him in possession, are not liable to be taken under an execution against E. Guthrie v. Wood, 1 Stark, 367. Ellenborough, C. J. 1816.

is made in writing, the former may be tees of an insolvent estate, cannot be

TRUSTEE-USE AND OCCUPATION.

295

recovered from them after they have frent by putting up a bill at the window, made a final dividend. Fydell v. Clarke and endeavouring to procure another et alt. 1 Esp. 447. Kenyon, C. J. tenant. Redpath v. Roberts, 3 Esp. 1796. 225. Kenyon, C. J. 1800.

2. No action lies against trustees for breach of trust. Allen and another, assignees af Prior, v. Imlett and another, Holt, 641. Dallas, J. 1817.

And see Phipps v. Sculthorpe, 1 B. &

A. 50.

3. Debt for use and occupation may be maintained by a corporation aggreAnd see ante, BANKRUPT, pl. 182. gate. Dean and Chapter of Rochester 3. Where trustees are bound to con- v. Pierce, 1 Campb. 466. Ellenbovey, it will be presumed that a convey- rough, C. J. 1808, and K. B. H. T. ance has been executed. Doe d. Bower-1809.

And see Bro. Corporation, 47.

Sed vide Rex v. Chipping Norton, 5 East, 239, 42, 3; S. C. 1 Smith, 502, 3. And see 6 Vin. Abr. Corporation, K. 41; Rex v. Bigg, 3 P. Wms. 423, 4, 5; 4,5; Sav. 20, pl. 50.

And qu. whether assumpsit would not also lie; Frevill v. Ewebancke, 1 Roll Rep. 82; Mayor, &c. of London v. Gorry, 2 Lev. 174; S. C. 1 Vent. 298; Barber Surgeons v. Pelson, 2 Lev. 252; Yarborough v. Bank of England, 16 East, 6.

4. Where the defendant has come into possession under the plaintiff, he cannot resist the payment of rent upon the ground of the plaintiff's title having expired, without shewing that he has disclaimed holding under the plaintiff, and has re-entered under a new landlord. Balls v. Westwood, 2 Campb. 11. Ellenborough, C. J. 1809.

S. P. arg. Keilw. 65; sed vide Co. Litt. 41, b. note, 237.

And see Co. Litt. 55 b, notes 372, 3; Smith v Target, 2 Anst. 529; Johnson v. Atkinson, 3 Anst. 798.

5. Submitting to a distress is an acknowledgment of the tenancy. Panton, widow, v. Jones, 3 Campb. 372. Bayley, J. Gloucester, 1813.

And see Co. Litt. 320, a; Vaugh. 39, Dixon v. Harrison.

6. Landlord mortgaged premises to A. and assigned equity of redemption to B. who afterwards purchased the legal estate from A. Held, that B. could recover from the tenant that part of the rent only which became due after he

And see Kirtland v. Pounsett, 2 had acquired the legal estate. Cobb v. Taunt. 145; Vendor AND PUR-Carpenter, 2 Campb. 13, n. EllenboCHASER, A. (a) 3. rough, C. J. 1809.

2. If the tenant abandon the premises without notice, the landlord is not pre-199. cluded from recovering the subsequent,

And see Lumley v. Hodgson, 16 East,

N. Upon a general reservation the

rent would be payable at the end of the year. Latch, 264.

And see Wolferston v. Manwaring, Bunb. 279.

7. And the tenant having been distrained upon by the ground landlord for several years' ground-rent, it was held, that he could only set off such part of it as accrued during the same period. Ibid.

mence in futuro, is a strict tenant at will, until the period at which the intended lease begins to run. De Medina v. Polson, Holt, 47. Gibbs, C. J. 1815.

16. A landlord evicts the tenant from

parcel of premises let at an entire rent. The latter by quitting the residue is entirely discharged. Smith v. Raleigh, 2 Campb. 515. Ellenborough, C. J. 1814. 17. But if he continue in possession 8. It is no defence in this action, he is liable upon a quantum meruit. that the plaintiff has brought an eject-Stokes v. Cooper, 3 Campb. 514, n. ment for the same premises, laying the Dallas, J. Worcester, 1814.

demise on the day on which the sup- 18. Semble, that an action lies for the posed tenancy commenced. Ibid. rent of a synagogue, there being no S. P. Anon. cited Cowper, 246, and denied by Buller, J. 1 T. R. 386.

And ruled that it would be otherwise after a recovery in ejectment. Birch v. Wright, 1 T. R. 378, 88.

And see Vid. Ent. 143.

written law prohibiting such establish ments. Israel and others v. Simmons, 2 Stark. 356. Abbott, C. J. 1818.

19. Where premises are let for the express purpose of prostitution, no action can be maintained. Girardy v. Richard

9. Such a circumstance would, how-son, 1 Esp. 13. Kenyon, C. J. 1793. ever, be a ground of special application to the court. Cobb v. Carpenter, ubi supra.

And see F. N. B. 120 H.

10. The tenant cannot set up a want of title in the plaintiff, under whom he came into possession. Morgan v. Ambrose, Esp. D. N. P. 31. Wilmot, J. Monmouth, 1756.

S. P. Howard v. Hodges, Selw. 67; Acc. Dig. 18. 1. 35. 2.

Sed vide Lloyd v. Johnson, 1 Bos. & Pul. 340.

C. EVIDENCE.

20. Declaration for the use of premises, situate in the parish of A. in the county of B.; there being no parish of that name in the county; the misdescription is fatal. Wilson v. Clark, 1 At-Esp. 273. Kenyon, C. J. 1795. 30.

S. C. Peake's Evidence, 242. 11. It is no defence that the plaintiff was himself merely tenant at will. kinson v. Pierpoint, Esp. N. P. D. Dennison, J. Lincoln, 1775.

12. But he may shew that the plaintiff's interest has expired. Morgan v. Ambrose, Esp. D. N. P. 31.

And see Co. Litt. 356, a.

B. Nature oF OCCUPATION.

13. A. lets to B. who underlets to C. and D.; A. gives notice to quit to C. and D. C. quits accordingly, and the premises occupied by him lie vacant for a year, after which they are re-let by B.; B. is not liable to A. for the rent of the unoccupied premises. Burn v. Phelps, 1 Stark. 94. Ellenborough, C. J. 1815.

14. And semble, that an eviction might have been pleaded in respect of all the premises demised to B. Ibid.

15. Semble, that a party entering under a verbal agreement for a lease to com

21. S. P. Guest v. Caumont, 3 Campb. 235. Ellenborough, C. J. 1812.

And see post, VARIANCE, C.

22. Where premises are held under an unstamped agreement, the landlord cannot enter into parol evidence of the demise. Brewer v. Palmer, 3 Esp. 213. Eldon, C. J. 1800.

Acc. Rex v. Inhabitants of St. Paul's, Bedford, 6 T. R. 452.

Sed vide Attes v. Hodgson, 7 T. R. 241.

And see White v. Wilson, 2 Bos. & Pul. 118; Hodges v. Drakeford, 1 N. R. 272, 3.

23. Assumpsit for use and occupation, will lie where there is an agreement under seal, if such agreement contain no words of present demise. Elliott, executor of Thomson, v. Rogers, 4 Esp. 59. Kenyon, C. J. Maidstone, 1801.

S. P. Bannister v. Usborne, Peake's Evid. 242.