The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Trover and Conversion.

In Law. In Deed.

• 1. Delivery as to persons unknown, 33 Hen.* 1.1 8. Br. Action upon the Case 109. Trover for a Hawk with bells reclaimed and sold, knowing it to be the Plaintiffs, 14 Eliz. Dyer 306. pl. 66. for he cannot recover it against the Vendee. Q. The Sale here makes the Conversion. Sold as to persons unknown, Lib. Intra. 5. A. Sect. 1.
• 2. Wasting the goods, 34 Hen. 8. br. Action upon the Case 103. for this a Conversion in Law.
• 3. Denial to re-deliver. A brought an Acti∣on for Plate and Jewels, and shews, that upon request the Defendant refused to de∣liver them, this is good evidence to a Jury; but to find it at large, viz. without a re∣quest, is not a sufficient Conversion to warrant the Action, Coke 10. part. 46. B. Oxfords case, Hill. 12 Jac. Ban. Regis, Isack & Clarke, per 3 Justices, 33 Hen. 6.27. for the Count is in usum suum proprium con∣vertit & disposuit; but a nude denial is not a Conversion, Q. viz. that he hath the goods.

But if it be for money out of a bag,* 1.2 then it is a good Conversion, if he deny it, because it cannot be known, Pasch. 14 Eliz. in Le chequer, and so the Plaintiff cannot prove that it was his money which was denied.

Note, if the Plaintiff have not property in the things, it lies not, 20 Hen. 7. B. pl. 18. Q. what property he must have.

1 Pasch.* 1.3 43 in Eliz. Bushopps case it was a doubt, if A takes goods to the use of B, and afterwards B agree to the taking; quaere, if such Action lies against B. quia A divests the property by the taking, and not B by the consenting, as it seems.

2. The count ought to shew the place of con∣version, Mich. 26, 27 Eliz. Ban. Regis, Stranhams case; because it is traversable and issuable.

So the day of the Conversion, Hill. 7 Jac. Ban. Regis; for the same reason, and without shewing that the Defendant knows not how to plead in bar.

If the count be of Trover, and the Jury find up∣on Bailment; yet good, for the Conversion is the point of action, Hill. 12 Jac. Ban. Regis, Isack & Clark, and not the Trover, for it is no fault to find a thing, for no property is gained by the bat finding, but by the Conversion.

Of what things it lies.

1.* 1.4 It lies for money out of a purse upon spe∣cial matter, that he lost it and the other found it, Trin. 43 Eliz. Com. Ban. Hall & Wood; Pasch. 24 Eliz. in the Exchequer; but not generally, for money cannot be known, and so the Plaintiff can fix no property in himself.

2. The Master delivers Corn to the Servant to fell, and brings his action for the money and goods; 1. the possession of the Servant is the possession of the Master. 2. It lies of money, Mich. 4, & 41 Eliz. Ban. Regis, Holliday & Higges; for the money comes in lieu of the Corn.

It lies for 20 Sheep,* 1.5 Coke 5. part. 109. Foxleys case.

It lies for a Chain-door, sound and sold,* 1.6 3 Mariae, Dyer 121. pl. 14.

It lies of a Horse.

But it is no plea for the Defendant that a person unknown stole them, and left them, & waiviavit, without shewing the circumstances when and where, Coke 5. part. Foxleys case 109. A. but if he had said, quidam ignotus waiviavit them, with∣out saying any more, this is good; for the cir∣cumstances shall be intended; for waiviavit est vecabulum artis, and implies all, Mich. 15 Jac. Ban. Regis, Leader & Paschall.

1. To traverse the sale is a good plea, 3 Mariae Dyer 121. pl. 16. viz. to say, he did not sell them.

2. That he distrained them for a Rent charge absque hoc, that he converted them, this is nought; for it is no Conversion at all, ideoque it amounts but to the gneral issue, non culp. Mich. 9 Jac. Ban. Regis, Davies & Knap.

That he is a Horse-breaker, and the Plaintiff delivered it for him, &c. Absque hoc, &c. this a∣mounts but to the general issue, non culp. Mich. 9 Jac. Ban. Regis, Lovelace & Martyn, and not good.

Husband and Wife shall have this Action for a Deed by which an Annuity was granted to the Wife;* 1.7 for the Wife should have it, if she survive the Husband, Trin. 40 Eliz. Com. Ban. Russel & Catesby; and the Husband is to have it during his life, viz. to make use of upon occasion.

It lies for twenty Pooks of Corn,* 1.8 Trin. 38. Eliz. Com. Ban. Price versus Sr. Walter Sands.

It lies of four bushels of Wheat, Trin. 12 Jac. Ban. Regis, Hill & Hawkes.

The Defendant shews a prescription in the Baily of L. to elect a Belman, which ought to repair the street of the Market-place, and to cleanse it, and that he shall have of every bushel there brought to sell, one pint of Wheat, &c. and justifies, &c. this is good, because the custome is doubtful and may be put in issue, therefore a good bar; otherwise this plea would amount un∣to the general issue; Trin. 12 Jac. Ban. Regis, Hill & Hawks, and then it would not be good.

For delivering of Jewels, &c. in a Box to B, who dies,* 1.9 and they come to C, who breaks the Box and converts them, 20 Hen. 7.4, pl. 13.

That he did not convert them to his own use is a good bar; for the Trover and breaking of the Box are but conveyances to the Conversion, 20 Hen. 7.4. pl. 13. per Fineux, and not the ground of the Action.

It lies of Quinquaginta pondus of Wool ad va∣lentiam,* 1.10 &c. for per Curiam pondus shall be taken one pound weight, because this weight is more certainly known throughout all the Countrey, Mich. 9 Jac. Ban. Regis, Roe & Lloyd; & loquen∣dum est ut vulgus.

It lies of a 100 load of wood, and 40 Beeches,* 1.11 No. Lib. Intr. 41. B. sect. 33. Q. whether loads be not incertain.

Of three Monkeys,* 1.12 and error brought because that they did not say they were tame, Mich. 9 Jac. in Exchequer Chamber, Shackley & Porter, if tame. Quaere, whether they are valuable and con∣siderable in Law, being only Creatures of plea∣sure.

It lies of forty measures of Pippins, scil. Bu∣shels,* 1.13 Mich. 9 Jac. in Exchequer. Err. inter Clay∣don & Taylor. Q. for they are perishable things, and may be rotten before they can be recovered, and so not to be recovered in kind; yet damma∣ges may be recovered, and so it may lie.

Notes

• * 1.1

  Trover Quid & Quotuplex.
• * 1.2

  Money.
• * 1.3

  Note.
• * 1.4

  Money.
• * 1.5

  Sheep.
• * 1.6

  Chain∣door. Horse.
• * 1.7

  Deeds.
• * 1.8

  Frument and Grain.
• * 1.9

  Jewels.
• * 1.10

  Wool.
• * 1.11

  Wood.
• * 1.12

  Monkey.
• * 1.13

  Pippins.