
    Willet against Willet
    _ Assumpsit will not lie to recover the value of specific articles in the possession of one', which are claimed by another. Trover is the proper remedy.
    ERROR to the common pleas of Alleghany county.
    This was an action of assumpsit by John Willet against William Willet to recover the price of a gun and a horse. The testimony exhibited the facts, that the gun aud the horse were in the possession of the defendant, and were claimed by the plaintiff. The court instructed the jury that if they believed the property belonged to the plaintiff, they might presume, without proof of a demand, a sale by the plaintiff to the defendant, so as to enable him to recover the value of the property in this action,
    
      Burke and Metcalf, for plaintiff in error.
    
      Feiterman, for defendant in error.
   The opinion of the Court was delivered by

Rogers, J.

This is the ordinary case of an action for the illegal detention of a personal chattel, for which trover is the proper remedy. But to support assumpsit, the form of action which the plaintiff thought proper to adopt to try the right of property, the court instructed the jury that they might presume a sale by the plaintiff to the defendant. I cannot perceive, nor has the counsel attempted to point out, the slightest testimony by which the jury would be warranted in making any such presumption. On the argument this ground wa.s abandoned, and the plaintiff contends that he may waive the tort, and recover the value of the goods; but this can only be done when the tortfeasor has sold the article and received the money. In such a case an action for money had and received may be sustained.

Judgment reversed.  