
    James Hill v. Nathaniel Wallace.
    ON an appeal from the judgment of a justice of the peace, Hill, the plaintiff, declared in assumsit, for 3l. 16s. for goods, wares, and merchandizes sold. The evidence was of wheat delivered into the mill of Wallace, the defendant, generally, without stating any particular purpose.
    Bradford and Purviance, for the defendant.
    The justice was right in giving judgment against Hill, even though the wheat had been received and misapplied by Wallace for only trover will lie in this case, and a justice has no cognisance of trover. This is no sale, nor delivery for the use of the defendant, but a delivery for the use of Hill. Therefore, trover is the only proper action. Assumsit is not maintainable, and there ought to be a nonsuit.
    
      Ross, for the defendant.
    The delivery of the wheat is clearly proved, and will support assumpsit, an action rather to be favoured than trover.
    
    1 St. L. 309
    
      3 Comm. 161-3. Cowp.290 4, 377.
   President.

We do not think ourselves at liberty to direct a nonsuit; for we cannot say, that it is impossible for the jury to presume a sale.

There are two questions :—

1. On the merits, whether the wheat was delivered.

2. On the form of the action, whether the evidence supports it.

1. The first question we leave to your determination.

2. On the second, it has been contended, that no action will lie, but trover. There is no foundation for this opinion. Were this true, and the wheat were lost or stolen, from the grossest negligence its owner would have no remedy; for, in such case, there would be no conversion, and, without conversion, trover could not be supported. It is clear, that assumsit will lie.

But the true dispute in this case has not been touched on. The real dispute is not whether trover or assumsit lies ; but whether this ought to be a special assumsit instead of a general indebitatus assumsit, as it is.

If from the circumstances of this case, and the course of this trade in this country, you can presume a sale, this action will lie.

The jury found for the plaintiff 2l. 5s. 6d. damages.  