of property, to a certain extent. If the assignees had been the defendants, they might have set up this defence; but it is not competent to the defendants, who have seized and sold the goods as the goods of Cox, to turn round and say that they belonged to his assignees. It is not contended that a defendant may not set up the title of a third party under a plea of "not possessed;" but it must be the title of some person connected with the defendants, and identified with them in point of interest; but here the assignees must be considered as strangers to the sheriff; for he seized and sold the goods, not on their account, but adversely to their claim. [Maule J. This is not an action of trespass, but of trover.] There is no distinction, so far as this case is concerned, between trespass and trover. In Carne v. Brice (a), which was an issue under the interpleader act to try whether wearing apparel taken in execution under a fi. fa. against one Morgan, was his property or not: Lord Abinger C. B. rejected evidence of Morgan's bankruptcy, which was tendered to shew that, at all events, the property was not vested in him but in his assignees; and this ruling was confirmed by the court of Exchequer. Chase v. Goble (b) may be cited as qualifying the doctrine laid down in Carne v. Brice. (a) In that case, however, the defendant was a creditor, and he had an interest in supporting the claim of the assignees by the deed, which amounted to an act of bankruptcy. Owen v. Knight (c) and Butler v. Hobson (d) will probably be also alluded to by the other side. But in Owen v. Knight the defendant asserted a property in himself. So, in Butler v. Hobson; for there likewise the assignees had an interest in setting up the title of the third party, inasmuch as the property in the hands of such party would be a (a) 7 M. & W.183. 8 Dowl. P. C. 884. (b) Antè, Vol. II. p. 930. 3 Scott, N. R. 245. (c) 4 New Cases, 54. 5 Scott, 307. (d) 4 New Cases, 290. 5 Scott, 798. 1842. LEAKE v. LOVEDAY. 1842. LEAKE v. LOVEDAY. fund in which all the creditors would share. [Coltman J. Has not the sheriff an interest here? If he were to pay the proceeds over to the plaintiff, would he not be liable to an action at the suit of the assignees ?] Here, the assignees do not make any claim until after the seizure and sale; and the sheriff having sold the goods as the goods of Cox, is estopped from setting up any authority subsequently derived from the assignees, which can only have a retrospective operation. In Brooke's Abr. tit. Justification, pl. 14. (citing Year Book 7 H. 4. 13. (a)), it is said that if a man, having no right, distrain in his own right, and after justify as bailiff of the lord, this is not a good justification; but if he distrained as bailiff, though he were not so in fact, and the lord afterwards agreed to the taking, such justification would be good. [Maule J. Suppose the defendants had pleaded that the goods were the goods of the assignees?] They are not justifying a conversion, but are only stating facts to shew that the plaintiff has no right to complain of a conversion. [Tindal C. J. If the sheriff, instead of defending the action, had come to the court under the interpleader act, might not the assignees, under an issue, have set up that the goods belonged to them by reason of Cox having been in possession of them with the consent of the true owner?] In that case the plaintiff would have known that the defendants meant to set up that defence in addition to the objection to the bill of sale, and the contest would then have been with the execution creditor. Had this been an issue the case would not have been distinguishable from Isaac v. Belcher (b), where it was held that in trover, the plea that the plaintiff was not possessed, puts in issue the (a) The case here intended to be referred to would rather (b) 5 M. & W. 139. 7 Dowl. P. C. 516. right of the plaintiff to the possession of the goods as against the defendant at the time of the conversion. In Fyson v. Chambers (a) it was held that a party who, after the death of an intestate, has taken possession of the goods, cannot set up as a defence to an action of trover by the administrator that the intestate had been first insolvent and then bankrupt, and had not paid 15s. in the pound under the fiat, and that therefore the property in the goods vested absolutely in the assignees, the goods having been acquired by the intestate after the bankruptcy, and he having been allowed by the assignees to retain possession of them. Here, the assignee, after the title accrued, sent down a messenger who examined the bill of sale with the goods, and then withdrew. The assignees having thus repudiated their title, the sheriff cannot be allowed to set it up. They allowed Cox to remain in possession of the goods, not in his own right, but under his agreement with the plaintiff; and having assented to Cor's holding the goods under the plaintiff, it is doubtful whether they can now say that the goods vested in them. As against the execution creditors, it is clear that the plaintiff has a right to the goods. Talfourd Serjt. (with whom was Keating) in support of the rule. After the cases of Lingard v. Messiter (b) and Watson v. Peache (c), it cannot be disputed that at the time of the bankruptcy, the assignees became entitled to the goods which were in the order and disposition of Cox, with the consent of the true owner; and if so, it is clear that the assignees are not precluded from asserting their title, because an ignorant messenger, after looking at the bill of sale, withdrew from the premises. Isaac v. (a) 9 M. & W. 460. (b) 1 B. & C. 308. 2 D. & R. 495. (c) 1 New Cases, 327. 1 Scott, 149. 1842. LEAKE V. LOVEDAY 1842. LEAKE V. LOVEDAY. Belcher shews that they may set up their title under the plea of not possessed. The assignees might have waived the tort, and brought an action for money had and received, if the proceeds of the sale had not been paid over to them. In trover a plaintiff is bound to make out an absolute title as against all the world. No authority has been produced to shew that in trover (whatever may be the case in trespass) a sheriff situated like the defendant Loveday is estopped from setting up the right of third parties. In trover the plaintiff complains not of a wrongful taking, but of a wrongful conversion. Trover, therefore, essentially differs from trespass, and gives rise to a question as to the property in the goods. The case cited from the Year-book is not in point. It was an action of trespass, and the issue taken was, whether at the time of seizing the goods the party was the bailiff of the lord. In Carne v. Brice the evidence was rejected, not because it was inadmissible, but because it would have been against good faith and the understanding of the parties to allow it to be given. Here, the plaintiff was not taken by surprise by the title of the assignees being set up, for he knew they were the real defendants, and that the sheriff had paid over the money to them on an indemnity, and proved that fact as part of Owen v. Knight, Butler v. Hobson, and Chase v. Goble are in favour of the defendants, and cannot be distinguished in point of principle from this case. his case. TINDAL C. J. It seems to me that the verdict in this case ought to be entered for the defendants, the parties having very properly agreed that instead of there being a new trial, the verdict should be so entered if the court should be of opinion that the plaintiff was not entitled to recover. The main question which was raised at the trial, and which has been argued before us, is, whether upon the pleadings as they stand, and under the cir LEAKE v. LOVEDAY. } cumstances proved, the sheriff had a right to set up the 1842. jus tertii. If he had, there can be no doubt that the property of the goods in respect of which the action is brought, must be regarded as having vested in the assignees of Cox from the time of his bankruptcy. This is not like the ordinary case of goods left in a readyfurnished house, by which no false colour is held out to the world by reason of the apparent ownership of the bankrupt. Here, it appears that the goods were originally the property of Cox, and that they were assigned to the plaintiff by a bill of sale, no alteration being made in their place of deposit; so that the bankrupt still continued to have them in his order and disposition. The case therefore falls within the principle of Lingard v. Messiter, Watson v. Peache, and that class of cases; and I have no hesitation in saying, that if the sheriff can avail himself of the title of the assignees, the right to the goods is in them. The action is trover, to which the defendants have pleaded not guilty, and that the plaintiff was not possessed of the goods as his own property; and the question is, whether, under the latter plea, the title of third persons may be set up. It seems to me, that from the very form of that plea, the plaintiff is called upon to prove the goods to be his property, and that the defendants are let into any evidence which will shew that such goods are not the plaintiff's. The count in trover contains two allegations, both of which under the old rules of pleading were put in issue by the plea of not guilty; namely, that the goods were the property of the plaintiff, and that they had been converted by the defendant. Many cases occurred previously to the new rules, in which a defendant was permitted to set up the jus tertii. For instance, in Blainfield v. March (a), where the plaintiff (a) 1 Salk. 285. |