¶1The opinion of the court ivas delivered by
¶2To maintain an action of trover, it is necessary that it should appear: 1st. That the plaintiff had either an absolute or special property in the goods which are the subject of the. action, at the time when they came into the possession of the defendant, who has converted them; and 2dly. that the defendant has been guilty of a wrongful conversion. From the evidence which this trial furnishes, I am inclined to think that nó right of property was established, in support of the plaintiff’s claim to the cotton, but on the contrary, that the presumption of right arising Tom possession merely, was rebutted by the evidence of his having procured a part from a negro, without showing at the same time that the negro was duly authorised to sell him the cotton.
¶3To sustain the allegation of a conversion by the defendant, possession in the defendant himself must be proved. Bull, N. P. 44; 2d. Selwyn, 1303 — no such evidence was offered. The goods were taken possession of in virtue of « search warrant, obtained by the defendant, and not without probable cause that the plaintiff’s possession vvas unlawful. The court are unanimous in the opinion that a new trial should be refused.