176 PLEADING, EVIDENCE AND DAMAGES. 



either by delivery or finding, and refuses to deliver 

 them(/). 



As this action proceeds on the ground of property in 

 the plaintiff at the time of action brought, it cannot be 

 maintained, if the defendant took the goods tortiously, for 

 by the trespass the property of the plaintiff is divested (/). 

 But if I lend a man a Horse, and he afterwards refuses to 

 restore it, this injury consists in the detaining, and not in 

 the original taking ; and the regular method for me to 

 recover possession is by action for the detention (m). This 

 would be the proper form of action for the specific restitu- 

 tion of a Horse, which has been unlawfully detained by a 

 Trainer, Veterinary Surgeon, Livery Stable-keeper, or 

 other person, into whose hands it had lawfully come in the 

 first instance. 

 Delivery of The delivery of specific goods, contracted to be delivered, 



specific goods, may, in accordance with a special finding of the Jury, be 

 enforced under the Mercantile Law Amendment Act, 1856 

 (19 & 20 Vict. c. 97). Section 2 of the Act providing, that, 

 in actions in the Superior Coiu"ts, or any Court of Record, 

 for breach of contract to deliver specific goods for a money 

 price, on application of the plaintiff, and by leave of the 

 Judge, the Jury shall, if they find for the plaintiff, find 

 ■what are the goods which remain undelivered, the sum 

 %vhich the plaintiff was liable to pay on delivery, the 

 damages sustained if the goods should be delivered under 

 execution, and the damages if not so delivered; and, 

 thereupon, if judgment be given for the plaintiff, the Court 

 or any Judge thereof, at their or his discretion, and on 

 application of the plaintiff, may order execution to issue 

 for the delivery of the goods on payment of the sum 

 found payable by the plaintiff, without giving the defen- 

 dant the option of detaining the goods on payment of the 

 damages assessed. Where it is intended to proceed under 

 this section, a formal tender of the price agreed, and a 

 demand of the specific chattel, should be made before 

 action, as probably execution for the specific chattel would 

 not be allowed to issue, unless the writ had been specially 

 indorsed with notice of the specific claim, and unless that 

 claim is repeated in the Statement of Claim {ii). 

 Action for not But where the Vendor refuses to deliver the Horse he 

 delivering. j^as sold, and the Pmx'haser is satisfied with his remedy 



(1) Selwyn'sN. P. i2th ed. 660, («) See Day's Common Law Pro- 



C62. cedure Acts, 4th ed. 393. 



[hi) 3 Steph. Comm. 4th ed. 514. 



