drew up the opinion of the Court. This case comes before us on exceptions to the judgment of the Coun of Common Pleas on a case stated by the parties, and having considered the facts agreed, and the arguments of counsel, and the cases cited, we are of opinion that the judgment for the plaintiffs cannot be sustained. William Cornell, at the time, when he sold the oxen to the defendant, had the actual legal and rightful possession, with a right of property on payment of $25*50. The agreement between him and the plaintiff amounted to a conditional sale, liable to be defeated, it is true, on the non-performance of the condition. William Cornell had, therefore, a clear right to dispose of the possession, with his right, such as it was, to the defendant. The plaintiff at that time had no possession, nor right of possession ; and the taking by the defendant was not tortious. Nor did his sale to Tripp amount to a conversion, because at the time he had the possession. It is said by Sergeant Williams, in a note in the case of Wilbraham v. Snow, 2 Saund. 47 b, “ that if the bailee, or other person who has only a special property, sells and delivers the goods to another as his own bond fide, and without notice, the general owner cannot maintain trover or any other action against the vendee, because by such a sale by a person who has a special property in, and possession in fact of the goods, the property of the general owner is altered.” This doctrine, however, is *297somewhat impugned by the case of Wilkinson v. King et al., 2 Campb. 335, and Roscoe (p. 395) says, that if the bailee of goods for a special purpose transfer them to another in contravention of that purpose, the general owner may maintain trover against that person, though he be a bond fide vendee; and the same doctrine is laid down by.Jlbbott J., in Loeschman v. Machin, 2 Stark. R. 312; but in the latter case there was a demand on the purchaser and a refusal to deliver, which no doubt amounted to a conversion. And in the case at bar, if there had been a demand on the defendant after the special property had ceased, and before he had parted with the oxen, he would undoubtedly be liable in this action ; but his acts previous to the 7th of May do not, we think, amount to a conversion. In Pain et al. v. Whittaker, Ryan & Moody, 99, it was decided, that where goods were let on hire, and were taken by the sheriff as the prop • erty of the person to whom they were let, the owner could not maintain trover, because he had not the right of possession at the time the goods were taken and sold by the sheriff.

It has been argued for the plaintiff, that the sale by William Cornell to the defendant was such a breach of trust as to terminate the bailment, and to restore to the plaintiff a right of possession. But this argument cannot be sustained. The plaintiff had no right of possession, and could not maintain any action for the recovery of the property before the 7th of May, nor can any thing done by the defendant before that time subject him to an action. And it does not appear that he has done any thing since, which can amount to a conversion.

Judgment of the C. C. P. set aside and a new trial granted.