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having no authority from such third person.] It is admitted that Stevenson had a right to enter and distrain to the extent of 45l. 17s. 7d.: the only question is as to the excess. According to Leake v. Loveday (a), the plaintiff must prove affirmatively that he has property in the goods. There, in December, 1847, certain goods of one Cox were seized by the sheriff, under a writ of fi. fa., and by him conveyed to the plaintiff by bill of sale, the goods remaining in Cox's possession under a secret arrangement between him and the plaintiff. In December, 1838, a fiat issued against Cox, under which he was duly declared a bankrupt. In August, 1841, the goods (which still remained in Cox's possession) were again seized by the sheriff under other writs of fi. fa., and by him sold, and the proceeds paid over under an indemnity to the assignees, who then for the first time asserted their right. In trover by the plaintiff against the sheriff, the jury having found that the goods were in the order and disposition of Cox as the reputed owner, at the time of the bankruptcy, with the consent of the true owner, it was held that the sheriff was not, under the circumstances, precluded from setting up the title of the assignees as an answer to the action. The judgment of Tindal, C. J., in that case, applies expressly in principle to this case. "The action," he says (b), "is trover: the defendants have pleaded not guilty, and that the plaintiff was not possessed of the goods as of his own property and the question is, whether, under the plea of not possessed, the defendants are at liberty to set up the title of third persons. It appears to me from the very form of the plea, that the plaintiff is called upon affirmatively to prove property in himself, and that the defendant is let into any defence tending to deny the

(a) 4 M & G. 972., 5 Scott, (b) 5 Scott, N. R. 922.

N. R. 908.

plaintiff's right of property. Under the old rules of
pleading, the count in trover involved two propositions,
both of which were put in issue by the general issue,
viz. that the goods were the property of the plaintiff,
and that they had been converted by the defendant.
There are many cases before the new rules where the
defendant has been permitted to set up the jus tertii.”
His lordship then referred to Blainfield v. March(a)
and Dawes v. Peck (b), and proceeded,-" These autho-
rities are sufficient, without citing more, to shew, that,
under the plea of not guilty, it was competent to a de-
fendant to set up the right of a third person as an answer
to the action. And I do not see why the same should
not be allowed under the plea of not possessed." [Jervis,
C. J. In that case, there was no possession in the plain-
tiff.] Here, the possession of the plaintiff was found by
the jury to have been obtained by fraud. [Jervis, C. J.
It was an actual possession.] Suppose the assignees
recover in the action now pending at their suit, and the
plaintiff recovers in this action, he would be recovering
a verdict in respect of property which is not, and never
was, his property. Coltman, J., in the case last cited,
says: (c) "The meaning of the plea of not possessed,
is, that the plaintiff has no property in the goods, in
respect of which he is entitled to maintain the action
against the defendants. Has he any property in these
goods? The conversion is said to have taken place at
the time of the seizure by the sheriff: and it is said that
the sheriff was a wrong-doer at that time as against the
plaintiff, the assignees not having then asserted their
right. But they do afterwards assert their title, and the
consequence is that their assertion of title, when it does
take place, vests the property in them from the time of
the bankruptcy. Upon this state of facts, the sheriff is
(a) 1 Salk. 285.
(b) 8 T. R. 330.

(c) 5 Scott, N. R. 923.

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no wrong-doer as against the plaintiff; for, he has seized, not the plaintiff's goods, but the goods of the assignees. The plea, therefore, is found for the defendants, provided they are not estopped from setting up the title of the assignees as a defence. The rule as to precluding parties from setting up the jus tertii, is not so extensive as has been contended. I have always understood it to apply only where the party has placed himself in a position to prevent him from averring the truth. I think this is not a case in which the rule applies." [Jervis, C. J. The action is founded on property: possession is only evidence of property.] Here, we shew that the possession was so acquired that it can be no evidence of property. If the plaintiff's possession was illegal, the case falls distinctly within Leake v. Loveday. Rowe v. Ames (a) shews that this defence, if available at all, amounts to not possessed; and to that extent is an authority for the defendant. In Howarth v. Tollemache (b), in trover against the sheriff, for seizing certain goods of the plaintiff, the defendant pleaded, that a fi. fa. against the goods of one H. was delivered to him as sheriff to be executed; that the goods in the declaration mentioned were the goods of H.; that H. fraudulently and collusively gave and delivered to the plaintiff possession of the goods, under colour of a feigned, covinous, and fraudulent alienation, bargain, and conveyance thereof from him to the plaintiff, then made, to the end, intent, and purpose to delay, hinder, and defraud the execution-creditor and the other creditors of H. of their respective lawful actions, debts, and demands against H., contrary to the statute; and that the plaintiff claimed title to the goods under colour of the said feigned, covinous, and fraudulent alienation, bargain, and

(a) 6 M. & W. 747.

(b) 5 Scott, N. R. 329., 4 M. & G. 427.

conveyance thereof, &c.: and it was held, that the plea was bad, as a mere argumentative denial of the plaintiff's possession. The lord chief justice at the trial referred to Doker v. Haslar (a). If the assignees of Saunders had claimed here, that would have been this case. What difference can it make whether the assignees claim before or after pleading? Hardman v. Willcock (b) is also an authority for the defendants.

Byles, Serjt., Pashley, and John Gray, in support of the rule. It clearly was not competent to the defendants to set up the jus tertii. Where it is a mere question of title, neither party being in possession,-the jus tertii may be set up, whether in trespass or in trover: Butler v. Hobson (c): but it is otherwise where the goods are taken out of the possession of a party. Bosanquet, J., in that case, says (d): "As to the jus tertii, the property not being in the plaintiff's possession, I see no objection to the defendant being allowed to shew that the right is vested in another." And Coltman, J., adds: "It is said

(a) 10 J. B. Moore, 210., 2 Bingh. 479. There, the plaintiff's attorney inclosed a writ of fi fa. to the sheriff's officer, in a letter, and told him that he might with safety put the defendant's mother, or any one else, in possession of the defendant's goods, and the officer acted accordingly, and left his warrant in charge of one of the defendant's shopmen, and the business was transacted as usual for nearly three months from the time the warrant was left; and the shopman accounted to the officer for the moneys received, who paid them over to the sheriff. The defendant having become bankrupt, his assignees

indemnified the sheriff in return-
ing nulla bona to the writ issued
previously to the bankruptcy. In
an action against the sheriff for a
false return, the jury having found
that the writ was sued out for the
purpose of protecting the property
of the party against other creditors,
the court refused to grant a new
trial, on the ground that the
plaintiff had not made out the
allegation in the declaration, that
the writ was delivered to the she-
riff to be executed in due form of
law.

(b) 9 Bingh. 382 (a).
(c) 5 Scott, 798., 4 N. C. 290.
(d) 5 Scott, 822.

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that it is not competent to the defendant to set up the jus tertii. It is, however, a mistake to suppose that there is any general rule to prevent the assertion of the jus tertii. It is true that an agent or a tenant cannot set up the jus tertii against the principal or the landlord: but I know of no rule of law to prevent such right being set up by a stranger in answer to the claim of one who is out of possession." Here, possession was out of the question. Leake v. Loveday proceeded very much upon the authority of Butler v. Hobson. There, the goods were in the possession of Cox. [Williams, J. Had not Leake in fact possession? He allowed Cox to keep them.] He had demised them to Cox. [Maule, J. Surely, for this purpose, the possession of the tenant was the possession of the landlord. No doubt, Leake had a perfectly good primâ facie title, in case for an injury to his reversion.] In no case has a defendant been allowed to set up the title of a third person against a case of possession, where the third person himself did not interfere. The main difficulty in this argument, is, that, if the plaintiff succeeds upon the count in trover, it may be that the assignees of Saunders may come and recover the property against him a second time. That seems a strong reason why the defendants should be allowed to set up the title of the assignees. But, on the other hand, the plaintiff would be liable to an action at the suit of the assignees; and it was part of the defendants' case that the assignees had actually brought an action against them. [Maule, J. If the plaintiff pays the money to the assignees, he may demand the goods, and then he may maintain his action.] He would not be the owner until after a judgment in trover against him: Cooper v. Shepherd. (a) A fraudulent preference in contemplation of bankruptcy may be inferred by a jury from

(a) Antè, Vol. III. p. 266.