Where the cause originally began in an inferior courts, and is removed to K. B. or C. B. the plaintiff shall have his full costs, although the damages are under 40s. and there is not any certificate. It only remains to mention another class of cases, it which it has been holden, that wherever a special plea of justification is found against the defendant, the plaintiff is entitled to full costs. To trespass quare clausum fregit, defendant pleaded not guilty, and a license, on both of which pleas issue was joined, and found for plaintiff, with one shilling damages, it was holden that the plaintiff was entitled to full costs, it being a general rule, that wherever a special plea of justification is found against defendant, plaintiff is entitled to full costs. The rule, as laid down in the foregoing case, was recognised in Comer v. Baker, 2 H. Bl. 341, and in Peddell v. Kiddle, 7 T. R. 659. The principle on which these determinations are founded, is stated by Lord Kenyon, in the last mentioned case, to be this, that where the case is such that the judge who tries it cannot in any view of it grant a certificate within the act, it is considered to be a case out of the statute. It may be remarked, that the principle adverted to by Lord Kenyon, is certainly a sound principle, but it is not quite so clear that the application of the principle to the cases in question was correct. By stat. 8 & 9 W. 3. c. 11. s. 4, " In all actions of trespass, wherein, at the trial of the cause, it shall appear and be certified by the judge, under his hand, upon the back of the record, that the trespass upon which any defendant shall be found guilty, was wilful and malicious, the plaintiff shall recover, not only his damages, but his full costs". In Reynold v. Edwards, 6 T. R. 11, it was holden, that if the trespass was committed after notice, the judge was bound to certify that the trespass was wilful and malicious. But in Good v. Watkins, 3 East, 499, it was adjudged, that although the trespass were committed after notice, yet the statute meant to leave it to the discretion of the judge to certify or not, according as it арpeared to him at the trial, upon view of all the circumstances proved, that the trespass was or was not wilful and malicious. The judge may grant his certificate at any convenient time after the trial. By R. G. H. T. 4 W. 4. 7, upon the trial, where there is more than one count, plea, avowry, or cognizance upon the s Roop v. Scritch, 4 Mod. 378. Archbishop of Canterbury v. Fuller, Lord Raym. 395. t Redridge v. Palmer, 2 H. Bl. 2. u See ante, p. 41. x Woolley v. Whitby, 2 B. & C. 580, overruling Ford v. Parr, 2 Wils. 21. record, and the party pleading fails to establish a distinct subject matter of complaint in respect of each count, or some distinct ground of answer or defence in respect of each plea, avowry, or cognizance, a verdict and judgment shall pass against him upon each count, plea, avowry, or cognizance which he shall have so failed to establish, and he shall be liable to the other party for all the costs occasioned by such count, &c. including those of the evidence as well as those of the pleadings. Upon a pleay of a right of way to fetch water and goods from a river, the jury having found the right to fetch water, and negatived the right to fetch goods, the court ordered judgment to be entered for the defendant as to the right to fetch water, and for the plaintiff as to the right to fetch goods. y Knight v. Woore, 3 Bing. N. C. 3. CHAP. XL. TROVER. I. Of the Nature and Foundation of the Action of Trover, and in what Cases such Action may be maintained. II. By whom and against whom Trover may be maintained. III. The Declaration-Plea, and herein of the New RulesDefence and herein of the Doctrine of Liens-Evidence of staying the Proceedings-Damages-Costs -Judgment. I. Of the Nature and Foundation of the Action of Trover, and in what Cases such Action may be maintained. DEFINITION.-The action of trover is a special action upon the case, which may be maintained by any person who has either an absolute or special property in goods, for recovering the value of such goods, against another, who having, or being supposed to have, obtained possession of such goods by lawful means, has wrongfully converted them to his own use. In order to maintain an action of trover, it is necessary that it should appear, 1. That the plaintiff had either an absolute or a special property in the goods which are the subject of the action: 2. That the plaintiff had also the right of possession in the goods: 3. That personal goods constitute the subject matter of the action : 4. That the defendant has been guilty of a wrongful con version. 1. Absolute Property.-It must appear, that the plaintiff had a property, either absolute or special, in the goods which are the subject of the action: but it is not necessary to shew that the plaintiff had both an absolute and special property b; either the one or the other is sufficient. Absolute property is where one, having the possession of goods, has also the exclusive right to enjoy them, and which can only be defeated by his own act. Timberd while standing is part of the inheritance, but when severed, either by the act of God, as by tempest, or by a trespasser and by wrong, it belongs to him who has the first estate of inheritance, whether in fee or in tail, who may bring trover for it. Trover was brought by a tenant in tail, expectant on the determination of an estate for lifee, without impeachment of waste, for timber which grew upon, and had been severed from the estate, and was in the possession of the defendant. It was holden, that the plaintiff could not recover; because an action of trover must be founded on the property of the plaintiff, and in this case the plaintiff had not any property in the timber; for a tenant for life, without impeachment of waste, has a right to the trees at the moment when they are cut down. In like manner tenant in tail, after possibility of issue extinct, is entitled to timber when cut. Trustees of an estate pur autre vie, cannot maintain trover for trees felled upon the estates; for although they have a special property in the trees while standing, yet that property ceases when they are cut down, and the trees then belong to the owner of the inheritance. It was for a long time in great doubt whether the landlord had such a possession of timber cut down during the continuance of a lease, on which he could maintain trover; but it was finally determined that he had; because the interest of the lessee in the timber remained no longer than while it was growing on the land demised, and determined instantly upon the severance. The defendant, a wharfinger, having acknowledged timber on his wharf to be the property of the plaintiff, it was holden, that he could not afterwards dispute it, and set up the title of a third person. The owner of goods stolen, prosecuting the felon to conviction, cannot recover the value of them in trover from a person who has purchased the goods in market overt, and sold them again before the conviction, a Per Lord Mansfield, C. J. 1 T. R. 56. d Per Lord Talbot, C. in Bewick v. e Pyne v. Dor, 1 T. R. 55. f Williams v. Williams, 12 East, 209. g Blaker v. Anscombe, 1 Bos. and Pul. N. R. 25. h Berry v. Heard, Palm. 327, and Cro. Car. 242. cited by Lawrence, J. in Gordon v. Harper, 7 T. R. 13. i Gosling v. Birnie, 7 Bingh. 339. k Horwood v. Smith, 2 T. R. 750. notwithstanding the owner gave the purchaser notice of the robbery, while the goods were in his possession; for, in order to maintain trover, the plaintiff must prove that the goods were his property, and that while they were so they came into the possession of the defendant, who converted them to his own use. But where property feloniously taken from the plaintiff was sold by the felon to defendant, who purchased bona fide, but not in market overt; the plaintiff gave notice of the felony to the defendant, who afterwards sold the property in market overt, after which the plaintiff prosecuted the felon to conviction; it was holdenm, that the plaintiff might recover from the defendant the value of the property. An arbitrator, to whom all matters in difference between a landlord and tenant had been referred, awarded that a stack of hay should be delivered up by the tenant to the landlord, upon being paid a certain sum for it. The landlord tendered the money, but the tenant refused to receive it, or to deliver up the hay: whereupon the landlord brought trover against the tenant for the hay. It was holden", that this action could not be maintained; for the property was not transferred by the mere force of the award, and that the landlord's only remedy was to proceed against the tenant upon the award; but Lord Ellenborough observed, that the case might have been different if the tenant had accepted the money tendered, for that would have been a ratification of the award, and an assent on the part of the tenant to the transfer of the property. If a tradesman order goods to be sent by a carrier, though he does not name any particular carrier, the moment the goods are delivered to the carrier, such delivery operates as a delivery to the purchaser, and the whole property is immediately vested in him; and if any accident should happen to the goods, it will be at the risk of the purchaser (1). So if A. order goods to be transmitted to him by a particular carrier, though upon condition to return them again, if he dislike them; yet upon delivery to the carrier the property is vested in A. and he will be bound to pay the price to the m Peer v. Humphrey, 2 Ad. & Ell. 495. 4 Nev. and M. 430. n Hunter v. Rice, 15 East, 100. o Said to have been determined by Eyre, C. J. at Shrewsbury Assizes, 3 P. Wms. 186. Dutton v. Solomonson, 3 Bos. and Pul, 582. S. P. p Haynes v. Wood, per Herbert, J. Surrey Ass. 1686. Bull. N. P. 36. (1) The only exception to the purchaser's right over the goods is, that the vendor, in case of the purchaser becoming insolvent, may stop them in transitu. See ante, c. 37. p. 1285. |