was conveyed in 1803 by J. B. to W. H., who in 1812 conveyed it to A. H., and he sold it in 1826 to the plaintiff. The first vendor did not deliver up the title deeds. In 1824 he was sued by A. H., the then owner of the estate, for the deeds, and a verdict was recovered against him, but the judgment was not docquetted. The first vendor absconded, and in 1825 obtained a sum of money as on a mortgage of the estate from one of the defendants, with whom he deposited the deeds. On trover brought in 1829, after demand and refusal, it was holdens, that the plaintiff, being the legal owner of the estate, might recover the deeds without tendering the mortgage-money. By a postnuptial contract, B. conveyed to plaintiffs, as trustees for his wife, property, the title deeds of which he obtained from the trustees and deposited with the defendants as a security for money advanced; it was holdent, that the plaintiffs were entitled to maintain trover for the deeds; for upon the deposit the defendant acquired no more than a right to go into a court of equity to compel a legal conveyance, and such right did not constitute the defendants purchasers within the stat. 27 Eliz. c. 4. s. 2, which enacts that every conveyance of land made for the intent to defraud such persons as have purchased in fee simple, fee tail, for lives or years, the same land so formerly conveyed, shall be deemed to be utterly void." As the master" of a ship has no general authority by law, in the absence of his employers, to sell the ship intrusted to his care, but only an implied authority to act for the benefit of the concern, exercising a sound discretion, such as the owner himself would exercise if he were upon the spot, it follows, that the owner of a ship may recover in an action of trover the value of the same from a vendee claiming by purchase from the master, unless the vendee can shew that the ship was sold by the master under such an urgent necessity as would have induced the owner to have sold the ship if he had been present. So although the captain of a ship find it impossible to reach his port of destination, he has not any implied authority, as the agent of the shippers, to sell the cargo for their benefit in a foreign port into which he is driven; and if he does so, although it should appear that he acted bona fide for the interest of all persons concerned in the adventure, yet such sale will be considered as a tortious conversion, for which the shipowner is liable. The captain of a ship has no authority to sell s Harrington v. Price and another, 3 B. and Ad. 170. t Kerrison v. Dorrien, 9 Bing. 76. ed. 5th and 5 Esp. N. P. C. 65. S. C. Reed v. Darby, 10 East, 143. x u Hayman v. Moulton, Abbott, p. 8. Van Omeron v. Dowick, 2 Campb. 42. the cargo, except in cases of absolute necessity; and therefore where, in the course of a voyage from India, the ship was wrecked off the Cape of Good Hope, and some indigo, which was part of the cargo, was saved, and the same was there sold by public auction, by the authority of the captain, acting boná fide according to the best of his judgment, for the benefit of all persons concerned, but the jury found that there was no absolute necessity for the sale; it was holden that the purchaser at such sale acquired no title, and the indigo having been sent to this country, the original owners were held entitled to recover its value. As to the master's power to hypothecate his cargo, see ante, p. 1050. n. A. entrusted B. with goods to sell in India", agreeing to take back from B. what he should not be able to sell, and allowing him what he should obtain beyond a certain price, with liberty to sell them for what he could get, if he could not obtain that price. B. not having been able to sell the goods in India himself, left them with an agent to be disposed of by him, directing the agent to remit the money to him (B.) in England. It was holden that A. could not maintain trover against B. for the goods. Where goods were placed in the hands of a factor for sale, and he indorsed the bills of lading to the defendants, who thereupon accepted a bill for him, and he, at the same time, directed the defendants to sell the goods and reimburse themselves the amount of the bill out of the proceeds: it was holdene, that the defendants, having sold the goods, could not be sued for them in trover by the original owner. It seems, that the original owner might have maintained an action for money had and received for the proceeds, and that the defendants could not have retained the amount of the money advanced to the factor. Trover will not lie for goods irregularly sold under a distressd; the statute 11 G. 2. c. 19. s. 19, having declared that the party selling should not be deemed a trespasser ab initio, and having given an action on the case to the party grieved by such sale. But if a party pay money in order to redeem his goods from a wrongful distress for rente, he may maintain trover against the wrong-doer. So trover will lie by the assignees of a bankrupt against a sheriff', who sells goods to satisfy an invalid as well as a valid execution against a bankrupt in order to recover the surplus. a Freeman and another v. the East India Company, 5 B. and A. 617. b Bromley v. Coxwell, 2 Bos. & Pul. 438. c Stierneld v. Holden and others, 4 B. and C. 5. Wallace v. King, 1 H. Bl. 13. e Shipwick v. Blanchard, 6 T. R. 298. f Stead v. Gascoigne, 8 Taunt. 527. II. By whom and against whom trover may be maintained. ONE joint tenant, or tenant in common, or parcener, cannot bring trover against his companion for goods remaining in his possession, because the possession of one is the possession of both; if trover be brought, the joint tenancy, &c. is good evidence upon the plea of not guiltys. Upon this principle it was holden, that A. a member of an amicable society, who had been entrusted with a box, containing the sums of money subscribed, and was bound by bond to keep it safely, could not maintain trover against B., another member of the same society, and a stranger, in a case where B. had got possession of the box, carried it away, and delivered it to the stranger; Buller, J. observing, that it was admitted, that one of the defendants was a member of the society, and, consequently, had a general property in the box; that a special property could not give a right in this action against a general property. The custody only was committed to the plaintiff, the property remained in the society. If after an act of bankruptcy, but before commission, a person sue out execution against the goods of the bankrupt, under which the sheriff without notice of the act of bankruptcy makes a seizure, and then within two months a commission issues, and afterwards the sheriff sells the goods, the assignees mayi maintain trover against the sheriff. After an act of bankruptcy committed by one of two partnersk, joint effects were sent away, which came to the defendant's hands; then the solvent partner died, leaving the defendant his executor, and afterwards a commission of bankrupt was taken out against the surviving partner, and his estate assigned to the plaintiffs; it was holden that they were tenants in common with the solvent partner, and after his decease with his representatives, by relation from the act of bankruptcy; and, consequently, could not maintain trover against the defendant claiming under such solvent partner. After an act of bankruptcy, committed by one of two partners',. the other delivered goods, part of their joint property, to a g 2 Leon. 220. case 278. See Stancliffe v. Hardwicke, 2 Cr. M. and R. 1. 5 Tyr. 551. post under tit. Plea, p. 1402, since the new rules. h Holliday v. Camsell and White, 1 T. R. 658. i Garland v. Carlisle, 2 Cr. & M. 31. in error; diss. 4 justices. See ante, p. 232. k Smith and others, assignees, &c. v. 1 creditor, for a joint debt, and died, and afterwards a commission issued against the surviving partner: it was holden, that this was in substance the same with the preceding case: that the creditor, by virtue of such delivery by the solvent partner, became tenant in common of the goods with the assignees of the bankrupt by relation from the act of bankruptcy, which was in the life-time of the solvent partner, and consequently, that the assignees could not maintain trover against such creditor. If one tenant in common merely takes the thing in common out of the possession of his companion, and carries it away, there no action lies by the other tenant in commonTM, but if he destroy the thing in common, the other may bring trespass or trover. As" where it appeared that one tenant in common of a ship had forcibly taken it out of the possession of his companion, and secreted it from him, so that he knew not where it was carried, and changed the name of it, and it afterwards got into the hands of a third person, who sent it on a foreign voyage, where it was lost, Lord King, C. J. left it to the jury, whether, under the circumstances, the destruction was not by the defendant's (the tenant in common) means; and the jury finding in the affirmative, the court, on motion for a new trial, approving of the chief justice's direction, refused to set aside the verdict (9). The preceding case proceeded upon the principle that there was a destruction of the subject matter, and it is now established, that one tenant in common cannot recover for a chattel in trover against his companion, without first proving a destruction of the chattel, or something that is equivalent to it. Hence, where one of two tenants in common of a whale, cut it up and expressed the oil, it was holdeno, that such alteration in the form of the property did not amount to a tortious conversion, so as to enable the companion to maintain trover; for the act done was an application of the whale to the only purpose which m Brammel v. Jones, B. R. T. 22 G. 3. MS. n Barnardiston v. Chapman, C. B. Hil. T. 1 G. 1. cited from Ld. C. J. King's MS. in Heath v. Hubbard, 4 East, 121. See Barton v. Williams, 5 B. and A. 395. and Farrar v. Beswick, 1 M. & W. 688. o Fennings v. Ld. Grenville, 1 Taunt. 241. (9) It seems that the sale of the whole of a ship by one who is only a part owner, in exclusion of the right of another, who is tenant in common with him, is not equivalent to the destruction of the subject matter, mediately or immediately, so as to enable his cotenant to maintain trover against him for it, 4 East, 110. See also Graves v. Sawyer, T. Raym. 15. could make it profitable to the owners, and tended to preserve it instead of destroying it, which one tenant in common was clearly entitled to do; and as the parties were clearly tenants in common of the whale, they became tenants in common of the produce, after it was converted into oil. N. It was admitted in this case, that the taking by the defendant, and the refusal to deliver on demand made, was not any misfeasance in a tenant in common, and did not give a right of action. See Cubitt v. Porter, 8 B. and C. 257, where it was holden, that where an ancient wall was pulled down by one of two tenants in common with the intention of rebuilding it, and a new wall was built of a greater height than the old one, this was not such a total destruction of the wall as to enable one of the tenants in common to maintain trespass against the other. The rule that one tenant in common cannot bring trover against his companion, holds only in those cases where the law considers the possession of one to be the possession of both. Hence, where A. is tenant in fee of one fourth part of an estate, and B. tenant in common with him, of the other three parts, for a term of years, without impeachment of waste, if A. cut down any trees, and B. take them away, A. may maintain trover; for though B., being dispunishable of waste, might cut down what trees he would, yet trees having an inheritable quality, and B. not having any interest in the inheritance, he cannot take the trees when felled by him who has the inheritance, and, consequently, his possession being tortious cannot be said to be the possession of the other. It is to be observed also, that if one joint-tenant, &c. bring trover, without his companion, against a stranger, the defendant cannot give the joint-tenancy, &c. in evidence on the general issue, so as to bar the plaintiff of his action, but only to prevent him from recovering any more than his own share in the value of the property in question; for it is a general rule, that the defendant can avail himself of an objection of this sort, viz, that all the part owners in a chattel have not joined in an action of trespass or tort, brought in respect of such chattel, by a plea in abatement only; and if one of two part-owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, the other part-owner may afterwards sue alone, and the defendant cannot plead in abatement of such actions. Trover will lie against a corporation'. p West v. Pasmore, at Exeter, per Thurton, J. Salk. MS. Bull. N. P. 35. q Nelthorpe v. Farrington, 2 Lev. 113. Adm. in Barnardiston v. Chapman, C. B. H. T. IG. 1. cited in 4 East, 121. VOL. II. r Bloxam v. Hubbard, 5 East, 420. 2 Z |