is said whatever to shew that the plaintiff was thereby excluded, or of his ever having made application and having been refused entrance, nor is it said that when the gate was opened to the plaintiff's son by the defendant to allow him to enter, there was any difficulty upon the subject, or that anything passed between the parties which shewed that the intention of putting the lock there was to exclude the co-tenant in common. Therefore, so far as the question of trespass is concerned, it appears to me to be idle to talk of trespass as a consequence of a man making hay upon his own field, for it is his own, or a moiety of it at least, and no definite portion of it is mapped out as his moiety. It might just as well have been said if the defendant had made hay upon two fields out of the three, that as the three fields were held in common, that would be an exclusion of the plaintiff from the property, as it can be said from any of the circumstances that I find here stated, that the inference of exclusion is to be drawn because he made the hay off the three fields. No remonstrance is alleged, nor any interference on the part of the defendant with the plaintiff, nothing but the fact that the co-tenant made hay.

The question, then, is, whether that making of hay by one tenant in common was in any way unlawful. The case of

Fennings v. Lord Grenville (12), which was cited at the bar, is expressly in point. The defendant there being a co-tenant in common of a whale, his servant turned all the whale's fat and blubber into oil, and appropriated them and the bone to himself, and the question was, whether trover would lie in such a state of circumstances. It was held that trover would not lie in that case, because the very purpose of capturing a whale was to turn it into oil. The co-tenant in common was therefore doing nothing that was illegitimate in the use that he was making of the whale. The question whether or not the plaintiff would be entitled to claim part of the profit under the Statute of Anne would be a very different question.

So long as a tenant in common is only exercising lawfully the rights he has as tenant in common, no action can lie against NEW SERIES, 41.-C.P.

Now it is perfectly

him by his co-tenant. lawful for a tenant in common of land to make the grass into hay-for somebody must make it-just as it is lawful for a tenant in common of a whale to make the blubber into oil. That is a perfectly legitimate purpose. It does not signify whether one or other of the tenants in common made use of it, it being made use of in an ordinary and legitimate way. Trover would not, therefore, lie against the co-tenant in respect of his having done what he did.

The cases in which trover would lie against a tenant in common are reducible to this: They are cases in which something has been done which has destroyed the common property, or in which there has been a direct and positive exclusion of the co-tenant in common from the common property, he seeking to exercise his rights therein, and being denied the exercise of such rights. There was the case of the ship being taken possession of by one tenant in common, and sent to sea without the consent of his co-tenant. In that case it was held that the property was destroyed by the act of one tenant in common, and therefore trover would lie in respect of the co-tenant's share. But where the act done by the tenant in common is right in itself, and nothing is done which destroys the benefit of the other co-tenant in common in the property, there no action will lie, because he can follow that property as long as it is in existence and not destroyed. If it is sold, another question arises under the statute of Anne.

The case of Mayhew v. Herrick (5) was also pressed upon us. That was a case where a sheriff seized the common property of partners, and sold it for the benefit of one of their number. There the peculiar circumstances made it a conversion by one tenant in common against another, and so trover would lie. The sale there was not using the partnership property in the manner in which it was proper to be used for the benefit of the tenants in common. But that was not in the least like the case of making hay out of a field or making oil out of a whale. As long as the tenant in common is confining his use of that property to

2 G

its legitimate purpose trover will not lie against him. But the moment he steps from the legitimate use to that which is illegitimate, as the sheriff seems to have done in that case by disposing absolutely of the common property as if the one partner had been the sole owner, trover will lie.

in

As regards the statute of Anne, that statute was intended to remedy a grievance which seems to have existed under the common law. For inasmuch as trover would not lie, by one tenant in common against his co-tenant, there appears, until the statute of Anne was passed, to have been great difficulty in a tenant in common getting his just rights with regard to that property which was his in common, but with respect to which he had not received his share. Accordingly the statute of Anne enacted that there should be an account, on behalf of one tenant in common against the co-tenant in common respect of anything that he had received beyond his just share, and the remedy is there pointed out for taking that account. That was a totally different transaction. Here all that appears upon the findings is that the grass was made into hay as it was always intended to be, and it was carried off. What happened beyond that is wholly undetermined by the findings in the case. We have no right to assume that it was destroyed by being eaten by cattle, which was one mode suggested in which it might have been disposed of. But we have no right to assume that any more than to assume that it was stacked upon the co-tenant in common's premises, and was there ready to be disposed of and shared between the two co-tenants in common when the proper time for sharing came. If it had been sold the remedy was not by an action of trover, but under the statute of Anne for an account.

My Lords, it is very lamentable when persons mistake their rights, but we cannot, I am afraid, aid them by saying that though the remedy has been totally mistaken, the party shall be allowed to proceed in another form by way of amendment. When, as in this case, an entirely different course of action has been pursued from that which is pointed out by the law, the party cannot be assisted in

arriving at his right. The plaintiff has chosen to bring an action of trover, and he now says, "I ought to be allowed to amend by turning this action into an action of account under the statute of Anne." But the whole case is entirely different. The whole question before the jury would be different, and the whole account would have to be taken upon totally different principles from anything that was done before the jury. We shall save no expense to the parties on either side by allowing such a course to be taken, and at the same time it would be impossible to retain the present verdict of the jury. That verdict has been founded on an action of tort. Of course, any expense of making the hay, and so on, cannot have been included in the computation of damages, which expenses would have to be allowed in a proceeding under the statute of Anne to the person who made the hay. It appears to me, therefore, that the plaintiff having mistaken his course throughout, cannot now be assisted. The order which he seeks to reverse was properly made, and we can only dismiss the appeal with

costs.

LORD WESTBURY.-My Lords, if there is any miscarriage in this matter, I think it must be attributed to the want of definite and certain statements in the special case, which is the subject of the present appeal.

Now the first point that was made on behalf of the appellant was this-That inasmuch as it appears that Miss Lawrence, who was one of the tenants in common of the closes in question, originally demised the entirety of the closes to the present appellant, it was contended by the appellant that, in fact, the lease so made by Miss Lawrence bound the other tenant in common, Miss Senior, and that Miss Senior had estopped herself by her conduct from challenging that lease as not being a lease of the entirety, but a lease confined to Miss Lawrence's moiety alone. Now there is not a single fact found in the case from which any such estoppel can be drawn as a conclusion of law. There is nothing found in the case to warrant the supposi tion that Miss Lawrence in demising the

entirety of the land acted with the knowledge and concurrence or with the authority of the other tenant in common.

That being so, the facts that are found are these that the present plaintiff in error being in possession by virtue of the demise made to him by Miss Lawrence, the defendant in error, acting under the demise to him by Miss Senior, took possession of the lands, cut the grass growing thereon and made it into hay, and took it away from the premises. The question that your Lordships have to determine is, whether the facts, as stated in that part of this special case, amounted to an ouster of Miss Lawrence's tenant by the tenant of Miss Senior; that lady, it appears, having assumed the power to grant a lease of the entirety of the lands to the defendant. The plaintiff, it is said, continued in possession of the lands, and expended money in cultivation of the same (that is, under the demise from Miss Lawrence) until the 23rd of June, when the defendant, acting under the authority of the lease made to him by Miss Senior, entered on possession of the fields, put a lock upon the gate, and cut and carried away the crop of grass. The putting of the lock on the gate was a perfectly immaterial thing, because it is not found that the lock was ever used, and as it would appear when the plaintiff in error wanted to enter upon the land he was at liberty so to do, because it is said that the defendant opened the gate for the plaintiff's son. Nothing amounting to an exclusion of the present tenant is stated, nothing that shews that, independently of the taking away of the crop of grass, anything was done to oust the plaintiff in error from the possession, or from an interest in the land.

The question comes, therefore, to this, as is stated in a subsequent part of the case: whether one tenant in common can maintain trespass against his cotenant for the removal of growing crops. The removal of the growing crops certainly does not amount in, law to an ouster of the tenant in common. The removal of the growing crops may be perfectly consistent with the enjoyment by both, and consistent with the other tenant in common having a right to an

account, or to get the benefit of his share of growing crops so removed, without the necessity of alleging, it not being the fact, that he has been at all ousted from the land. If, therefore, the present appellant claims a right to have judgment in his action of trespass on the ground of his having been ousted, there is nothing found in the case which in law or fact would amount to an ouster.

Now the jury, under the direction of the learned Judge (who was misled by a false reference), found a verdict for the plaintiff, and the damages were assessed at 671. The questions, therefore, which will arise are two-Can the verdict for the plaintiff, the present plaintiff in error, in his action of trespass be maintained? And can he be entitled in his form of action, namely, of trover, to recover the value of the growing crops, or half of the value of the growing crops, on the ground of his having been ousted from the land.

But

It is undoubtedly settled law that he cannot maintain trespass unless there is a case of ouster, and as I have already observed no facts amounting to a case of ouster are stated in the special case. then it follows clearly, he is not entitled to trover for the entirety of the growing crops. All that he could allege would be, that he was entitled in some form or other, either in law or in equity, to have one half of the value of the growing crops. But the form of action that he has adopted is not consistent with that claim.

An application was made to change the form of action into an action of a perfectly different character, namely, an action for an account under the statute. The learned judges in the Court below held that that could not be done, because the form of proceedings was entirely dif ferent in its character. My Lords, I entirely concur in that decision. The result, therefore, is that the plaintiff, by the form of action he has adopted, has lost a remedy he might otherwise have had. It is a matter of regret that when the question at issue related only to one half of 671. these proceedings should have been taken, proceedings which are founded altogether upon a misapprehension of the

Contract-Rejection of Goods-Damages. The defendants engaged to supply shoes to the plaintiffs, to be according to sample and to be inspected and paid for by the plaintiff's before shipment, it being known that the shoes were intended for the French army; a large quantity of shoes were inspected, upproved and delivered, and a portion then sent by the plaintiffs to Lille. It was subsequently discovered by the plaintiffs that some of the shoes contained paper in the soles which the French authorities would not allow, and after various communications the defendants engaged to take back shoes returned because they contained paper, but not a larger quantity if only a few were so defective. The French authorities rejected all, and on cutting open a large number most were found to contain paper, which was also found in the sample; the shoes both delivered and undelivered were inferior to sample, and the defect could not be discovered by any rea sonable inspection. The plaintiff's gave notice that they rejected the shoes delivered and would receive no more, and brought their action:-Held, that the plaintiffs were entitled to reject the shoes delivered, and throw them back on the defendants' hands at Lille and in England respectively, to refuse to receive more, and to recover as damages

the whole money paid, the expense of send ing to and keeping at Lille, and the loss of profit on all shoes delivered or not.

Per BOVILL, C.J, and BYLES, J., dissentiente BRETT, J., the shoes could not have been thrown back on the defendants' hands at Lille but for the second engagement.

This was a rule calling on the defendants to shew cause why the damages found in an action for breach of contract should not be reduced, or why there should not be a new trial, on the ground of the verdict being against evidence. As it was agreed that no point should be made as to the form of pleadings, and the facts are fully set forth in the judgment of Bovill, C.J., it is unnecessary to state them here, and the statement in the head note will be found sufficient to explain the arguments. Sir John Karslake, Watkin Williams and McLeod shewed cause. - As the goods were not in existence at the time of the contract, but had to be supplied and were to answer a certain description, no property in them passed to the plaintiffs at the time of the contract; and as they were entitled to take a reasonable time for ascertaining whether the goods were such as had been contracted for, and according to the facts and finding of the jury they never had a reasonable opportunity of making such an inspection as was necessary to ascertain the latent defect which existed before the shoes actually shipped arrived at Lille (for it was impossible to make an inspection which was effectual without cutting up and destroying the shoes), the property in the shoes received had not passed to the plaintiffs by what had taken place; and as they were not the goods which had been contracted for, the plaintiffs were entitled to throw them back as they did on the defendants in Lille and London respectively, and recover not only the money they had paid for them, but also the expense incurred by sending a portion of the shoes to France, and further to refuse to accept the remainder of the shoes which also were not according to sample, and recover damages for loss of profit on all the shoes delivered or undelivered. It is admitted that when the buyer has accepted the article and so dealt with it as to make it

his own, he cannot then return it to the vendor and recover back the price, but must only seek damages for the difference between the value of the article he has got and that of the article which was coutracted for; but where the contract is not for a specific chattel but for something which is to be made, and the buyer, at the proper time for ascertaining whether the article is such as was contracted for, finds out that it is not such, and repudiates it accordingly, it does not become the buyer's, and is at the risk of the seller. It is the same as if the chattel had never been received at all by the buyer. This is the result of the cases Street v. Blay (1), Mondel v. Steele (2), Okell v. Smith (3), and the notes to Cutter v Powell (4). The case of Making v. The London Rice Mill Company (5) also is an authority in favour of the plaintiffs. There the plaintiffs bought of the defendants rice for shipment to New York, and which was to be rice in double bags. The rice delivered was in single bags, and it was held that as it was proved that rice in double bags was more saleable in New York than rice in single bags, the mode of packing in double bags affected the quality and description of the thing sold, and that, therefore, the plaintiff was entitled to reject the rice.

[BOVILL, C.J.-There was no question there as to the right to reject, but only as to the amount of damages to be recovered; and as the defendant had contracted not for rice only, but for rice in double bags which was more saleable in New York, the Court decided that he was entitled to keep his verdict for the whole amount of damages, which was the difference between the contract price and what the rice sold for at New York.]

It was conceded there that the plaintiff had a right to repudiate if the packing of the rice in double bags was part of the description of the thing sold. In the present case the plaintiff's repudiated the

(1) 2 B. & Ad. 456.

(2) 8 Mee. & W. 858; s. c. 10 Law J. Rep. (N.S.) Exch. 426.

(3) 1 Stark. 107.

(4) 2 Smith's Lead. Cas. 26 & 27 (6th ed.).

(5) 20 Law Times, N.S. 705; s. c. 17 W. Rep.

768.

shoes as soon as they could reasonably discover their defective condition. The defect in them was a latent one, and in such a case a reasonable time must be given for discovering it. That did not elapse till the discovery made at Lille, and therefore even under the original contract a right to reject arose, and certainly under the subsequent agreement.

[BOVILL, C.J., referred to Hunt v. Silk (6), and Blackburn v. Smith (7), as to placing the parties in statu quo before recover ing back the whole amount.]

The article delivered by the seller must answer the description of what was contracted to be sold-Nichol v. Godts (8) and Allan v. Lake (9); and the recent case of Head v. Tattersall (10) shews that the right of the buyer to return the chattel and recover back the price is not always lost because the chattel cannot be returned in the same state as when it was received.

Serjeant Parry, Butt, and C. Russell in support of the rule.-As respects the shoes sent abroad, the plaintiffs so dealt with these shoes, and treated them as their property, that they cannot in the absence of fraud on the part of the defendants (which is not here suggested) repudiate them and return them to the defendants. The plaintiffs had taken the shoes into their possession, and had appropriated them, and given them a new destination by sending them to Lille. After that it does not lie in the plaintiffs' mouths to say that the property had not passed. In Blackburn on Contracts of Sale, p. 128, it is said "the general rule laid down by Lord Coke in Heyward's case (11), and adopted in Comyn's Digest, Election, seems to be that when from the nature of an agreement an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in order that he may perform his (6) 5 East, 449.

(7) 2 Exch. Rep. 783; s. c. 18 Law J. Rep. (N.S.) Exch. 187.

(8) 10 Exch. Rep. 191; s. c. 23 Law J. Rep. (N.S.) Exch. 314.

(9) 18 Q.B. Rep. 560.

(10) 41 Law J. Rep. (N.s.) Exch. 4. (11) 2 Co. 36.