1831. BROWN v. SHUKER and Others. ge That may raise an inference that the earlier part is neral, applying to all pleas of riens per descent, whether alienation takes place after or before action brought. At common law, the heir's alienation barred the obligee of the ancestor; now, by 3 W. & M. c. 14. s. 5., the heir is charged according to the value of the lands aliened. As the award of a writ of inquiry according to the terms of the rule might be reversed in error, a venire de novo is the proper course (a), if no arrangement takes place between the parties. VAUGHAN and BOLLAND Bs. concurred. Venire de novo to issue, unless the parties agree within a fortnight to the assessment of the value by a sheriff's jury, or reference to an arbitrator. (a) As to costs of venire de novo, see ante, Edwards v. Brown. May 25. in ejectment was served on DOE dem. LEWIS against THOMAS PREECE. A declaration EJECTMENT by a mortgagee.-Catherine Preece and Thomas Mutlow, tenants in possession, were two tenants in served with copies of the declaration, and appeared; possession of different parts after which, the defendant Thomas Preece was admitted of the preto defend only as landlord. At the last Lent assizes for mises sought to be recover- Herefordshire, the defendant proposed to call Mutlow to party entered prove adverse possession for more than twenty years by into a rule to Catherine Preece. She had been in possession of all the defend alone, as landlord. premises for nearly forty years, except of a part let by Semble, nei- the defendant to Mutlow at Christmas, 1826, and held ed. A third ther tenant in possession can be admitted to prove adverse possession by the other of the part held by him, for the judgment in ejectment would be evidence against both in an action for mesne profits. by him from that time to the time of bringing the ejectment. Catherine Preece was also tendered as a witness to prove adverse possession by Mutlow of that part. For the lessor of the plaintiff it was objected, that as Catherine Preece was in possession of part of the premises proceeded for, she could not be called to sustain the defendant's case, even as to the part not held by her, as she would be liable to the costs of an action for mesne profits, even of that part, for nearly two years previous to Christmas, 1826; and the title set up by the defendant to both parts being the same, she would be giving evidence to uphold her own possession; Doe d. Foster v. Williams (a). The witnesses were rejected, and the lessor of the plaintiff had a verdict. Godson moved for a new trial in Easter Term. Though the declaration was served on both the witnesses as tenants in possession, Thomas Preece, having been admitted to defend as landlord, is the only defendant on the record, and neither of the tenants in possession would be liable for the mesne profits of the part held by the other. A rule being granted, Russel, Serjt., and Talfourd now showed cause. — Catherine Preece was proposed to be examined in support of her own possession, which she would lose in the event of a verdict for the lessor of the plaintiff. Doe d. Foster v. Williams. Godson admitting that when he called Mutlow he did not state to the learned judge that he proposed to confine that witness's evidence to the part held by Catherine Preece, 1831. DOE d. LEWIS บ. PREECE. (a) Cowp. 621. 1831. DOE d. LEWIS V. PREECE. The Rule was discharged -BAYLEY B. saying that no injustice was sustained by the defendant. For as the witnesses rejected were identified with him in interest, by being tenants in possession at the time the ejectment was brought and served, the judgment therein would be evidence of the title of the lessor of the plaintiff in an action against the tenants in possession for the mesne profits, so as to bring them within the general rule alluded to (a). (a) Bul. N. P. 87. Rule discharged. The proposed witnesses had a certain disadvantage attending the event of the suit one way: as a judgment for the lessor of the plaintiff would have the effect of turning them out of possession immediately; see Gilb. Law Ev. 106. as cited by Tindal, C. J. Doe d. Teynham v. Tyler, 6 Bing. 394.; and judgment by the consent rule had been signed against the casual ejector, on admitting the defendant to defend as landlord without the tenant, with stay of execution till the event of the trial in ejectment; so that on judgment for the lessor of the plaintiff, the tenants in possession were liable to an action for mesne profits. Aslin v. Parkin, 2 Burr. 665. On the same ground, had the tenants defended the possession, the landlord could not be called to support their title. Ibid. It seems that when a lessor of a plaintiff claims lands in possession of different persons, and one of the tenants would be a material witness for the others, such tenant, before opposing or pleading, should suffer judgment to go by default as to the part in his possession, see Bull. N. P. 99. ; or at least consent to a verdict for so much as he is proved to be in possession of. Dormer v. Fortescue, Willes, 343. n. For Bourne v. Turner, Stra. 632. decides that a landlord cannot be made defendant in ejectment in lieu of the tenant in possession, the latter being sworn to be a material witness for the former; for the declaration is delivered to the tenant in possession, who is liable for the mesne profits, ibid.; and the person actually in possession and trespassing must be defendant in that action. Burne v. Richardson, 4 Taunt. 720. 1831. HAWKES and Another, Assignees of STEPHEN DUNN, against SAMUEL DUNN. under a commission of shewed his warrant to defendant, and said, "I bacon which no such ba con: I have some that TROVER for two bales of bacon. Plea general issue. A messenger At the trial before Taunton, J. at the Lent assizes for Somersetshire, the following facts were proved. The bankrupt commission of bankrupt was dated 18th May 1830, and the assignment to the plaintiffs the 18th June in that year. The bankrupt, after residing at several places in Exeter, had gone to live at a shop in Fore-street in June 1829, where his son Edwin, aged 18, with his sister Anna, aged 22, had previously carried on a trade in bacon for some months," E. Dunn and Co." being on the door. On 1st June 1830, Shepherd, a provision dealer at Plymouth, who had had other dealings with Edwin Dunn, sent him two bales of bacon, directed " E. Dunn and Co. Exeter." It arrived at the waggon-office in Exeter. Edwin Dunn met it there, and on 4th June sent it thence by waggon, without delivery in Fore-street, to the defendant, his uncle, at Wiveliscombe, viâ Taunton. It was delivered to him there on the 7th, the bankrupt being then in prison. The messenger under the commission arrived at Wiveliscombe on the 8th, shewed his warrant to the defendant, and told him he was come for bacon that had belonged to the bankrupt. Defendant said he had no bacon that belonged to Stephen Dunn, but he had some that came from Edwin and A. Dunn's shop in Exeter. The messenger told him to take care of it, and came from E. and A. D.'s shop in Exe ter." (a son and daughter of the bank rupt) The messenger desired him to take care of it, and not to part with it, as more would be heard about it. The defendant gave no answer. afterwards he suffered it to be removed by E. D. and sent back to the tradesman who furnished it. Held that this was evidence of a conversion. When goods are furnished to the agent of a bankrupt, on the agent's credit, he may, to protect himself, stop them in transitu, and give them a new direction adverse to his principal; but if he give them a fresh destination, in furtherance of the usual course of business of the principal, they pass to the assignces, as in the order and disposition of the bankrupt. 1831. HAWKES and Another v. DUNN. not to part with it, as more would be heard about it. There was no evidence of any answer by defendant. The messenger went again on the 29th, and asked for it, but the defendant said, he had sent it back to the place from whence it came. Edwin Dunn, for the defendant, proved that the whole business in Fore-street was his. That all of the bacon at that shop was obtained on his and his sister's credit, and that the bacon in question stood on the same footing; that his father lodged with him, paying a weekly sum, and served in the shop in his or his sister's absence: also, that defendant refused to keep the bacon, as there was a dispute about it, and helped to load it, in order to be sent back to Shepherd at Plymonth. On the 23d June, Shepherd regained it at Exeter. It was also proved that Edwin Dunn had obtained orders for the above bacon from several inhabitants of Wiveliscombe before the 4th of June. The learned judge left it to the jury to say whether the stock of bacon in Fore-street was the property of Stephen Dunn, or of Edwin and Anna Dunn, stating that the business might have been carried on there by the latter colourably, while their father Stephen was the actual trader, and also that what took place at Wiveliscombe, was evidence of conversion by the defendant. The jury found the business and stock in Fore-street, to be actually the property of the bankrupt, Stephen Dunn, and that whatever was done there, was done by him by the agency of his children, and gave a verdict for the plaintiff, damages 81. Wilde, Serjt. in Easter Term, moved for a new trial for misdirection, on the ground that there was no evidence of conversion. He contended that the defendant could not be made a bailee without his own consent, by being charged with the possession of goods of the title to which he was not cognizant. The distinction between |