The opinion of the court was delivered by
Redfield, J.
1. We think there is no doubt that the motion to dismiss the action for want of jurisdiction in the county court was correctly overruled. The case is the same, in principle, with that of Ladd v. Hill, 4 Vt. 164" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/ladd-v-hill-6571380?utm_source=webapp" opinion_id="6571380">4 Vt. 164, and, in its facts, somewhat stronger than that case in favor of the jurisdiction of the county court.
2. We think the suit is well enough brought in the name of the plaintiff in her representative capacity. The administrator, under our statutes, which are much the same as the English Statute of 4 Edward III, c. 7, may sustain trover, either for a conversion during the life of the intestate, or, after the decease, either before or after administration granted. In the former case he must declare in his representative capacity, counting upon the possession and property of the intestate, or upon the administrator’s seisin by relation, and in the two latter cases the suit may be in the name of the administrator as an individual merely, counting upon his naked possession, when he ever had such possession in fact; otherwise in all cases, when the property is in the estate, the declaration should be in the name of the administrator, as such. 1 Ch. Pl., 58-60. Towle v. Lovet, 6 Mass. 394" court="Mass." date_filed="1810-05-15" href="https://app.midpage.ai/document/towle-v-lovet-6403542?utm_source=webapp" opinion_id="6403542">6 Mass. 394. Foster v. Gorton, 5 Pick. 185. 28 E. C. L. 105. 1 Ad. & El. 354. Story’s Conf. of Laws 433.
3. We do not think that the contract between Stephen Manwell and_James Briggs, as detailed in the bill of exceptions, was sufficient to vest any interest in the note in Briggs, or in any thing which should be collected on the note, unless collected by him. The case of depositing a note with a third person, upon the terms that he have one half he can collect upon it, is not very uncommon, and is not understood to vest any interest in the note in such depositary, or as *182precluding the owner of the note from collecting it himself, if he have an opportunity.
4. As the testimony was, and as the case was put to the jury, we are to understand that the jury might have found, and probably did find, that the plaintiff took the horse before any contract was closed, — before she had performed the necessary conditions on her part. If so, it is settled law that no title would vest in her. 3 Stark. Ev. 1148 & note, citing Bishop v. Shillito, 2 B. & Ald. 329, note.
5. But the jury .were told that this condition would be waived, •if “ Hoyt was afterwards satisfied to have her [the plaintiff] keep the horse, and he so informed the defendant, before the defendant directed him to take the horse.” If by “ satisfied” is meant a mere mental conclusion to waive the condition, and this not notified to any one, then it is not true that such a mental determination would affect the title of the property, which had been wrongfully taken by the plaintiff. If the plaintiff had done any act, in order to induce this waiver of the condition, or had been informed of, it, and acted upon it, the waiver would then have become irrevocable; — but not •so when it was a mere mental waiver, and was made known only to the defendant, or any other person not interested in the°performance of the condition. This is the natural import of the word “ satisfied,” and the sense in which it was probably used to the jury.
But if we should construe the term as importing something beyond this, — as implying an express waiver of the condition, made known to the plaintiff, — there is still a difficulty in sustaining the case, — there being no evidence tending to show that any such fact existed. And if the plaintiff would get along with his case upon the ground that Hoyt had waived this condition in the sale, she must prove that fact; and a jury cannot be permitted to draw any such conclusion by mere conjecture. The important testimony upon this point, to which the jury were referred, was, that Hoyt told the defendant that “ he had turned out the horse to the plaintiff on the note.” We do not think this has any tendency to show that the contract of sale was closed by Hoyt’s waiving the condition *183which was at first annexed to it. If Hoyt told the defendant that he had turned the horse out upon the note, it seems quite as probable that he told him upon what conditions, as that he omitted to state the conditions; and if we could suppose that he did omit to state the conditions, we should more naturally conclude that he had merely determined in his own mind not to insist1 upon the conditions, than that he had expressly so stipulated with the plaintiff. If this were the true state of the case, then Hoyt and the defendant would be without fault.
In regard to the conversion, — if there had been a tortious use, or taking, of the horse, which of itself amounted to a conversion, a subsequent demand would hardly amount to a waiver of such conversion. But the evidence of a conversion, which should result from a mere demand and refusal, would be very much affected by a subsequent demand and the defendant’s then offering to surrender the property. It is upon this ground, if any, that the case of Haywood v. Seaward et al., 1 Moore & S. 459, [28 E. C. L. 269,] is to be justified. In that case the defendants had in their possession a boiler belonging to the plaintiffs, who demanded it, and the defendants at first refused to give it up, but afterwards, and before the issuing of the writ, tendered it to the plaintiffs, — and it was held no conversion.
Judgment reversed, and case remanded for anew trial'.