The only inquiry presented to the Court, is, whether trover is maintainable upon the facts on the record. To sustain that action, it is necessary for the plaintiff to prove a property in himself, and a right to the possession, at the time of the conversion by the defendant; a conversionby the defendant; and that the chattel alleged to have been converted was of some value. Neither of these essentials seem to have been proven on the trial. If therefore the testimony recited in the bill of exceptions be exclusive, it is clear that the instructions of the Court were correct.
It is argued, however, by the counsel for the plaintiff, that all the evidence given on the trial, cannot be supposed to be spread upon the- record; and that consistently with the facts there stated, the Court may inquire whether the statute of frauds does not prevent a parol contract for the sale of lands from acquiring any validity, and authorize -the purchaser, to recover from the-seller, the consideration •which may have been paid him on the footing of such contract. The language employed negatives the idea that other testimony than that recited was offered: it is set out with some precision, and the opinion of the Court seems 'to have -been predicated upon it. In the instructions, nothing is : said ■ by the ' Court in relation to the. statute of *41frauds, or whether the payment by the plaintiff prevented, its operation: but the only point which -appears to have suggested itself to the Court was, whether the plaintiff’s evidence entitled him to a recovery.
The plaintiff might without a previous demand and fusal to deliver the horses, have recovered in detinue, if the defendant had refused to perform his contract; unless the defendant had already converted them; and the Court may perhaps have had in view that form of action, when it says the one adopted is not sustainable. If the formal requisites in this action had been satisfied by proof on the trial, the judgment would be reversed upon the authority of the case of Allen v. Booker,a decided at this term; but the principle decided in that case is not presented by the exceptions for adjudication here. The Court is therefore constrained to affirm the judgment.
Judgment affirmed.
Judge Taylor dissenting. Judge Saffold presided below, and did not sit.Ante p. 21.