It has never yet been held that the single act of removing a chattel, independent of any claim over it, either in favor of

refused to deliver them on demand, it was held that trover would lie therefor. Quere, was it not the only remedy?

Where property is placed in the hands of a person as collateral security for a loan to be paid at a fixed time, if the lender sells the property before the time expires, even though the pledger does not pay on the day, he will be liable in trover therefor. Thus in Johnson v. Cummings, 15 C. B. (N. S.) 330, the plaintiff deposited with the defendant a dock warrant for brandies, as security for a loan, with power to sell if not repaid by the 30th of the month. On the 28th the defendant sold the brandies, and on the 30th the yendee took possession. Held that this was a conversion of the property. Where property is assigned to one, unless he takes it into his possession, or in some manner exercises dominion and control over it, other than by holding the mortgage upon it, he cannot be charged with a conversion of the property. Everett v. Salters, 20 Wend. (N. Y.) 267; Holbrook v. Wright, 24 Id. 169; Bailey v. Colby, 34 N. H. 29. In the case of the erection of buildings upon the lands of another under a license, with liberty to remove them if the owner of the land sells the land to a bona fide purchaser without notice of the right of the licensee this is a conversion by the licensor, and the deed is evidence thereof. Bircher v. Parker, 43 Mo. 443. But could the grantee of the lands under such circumstances be held chargeable in trover upon demand for the buildings and a refusal to allow them to be removed? See Town v. Hazen, 51 N. FI. 596. Where property has been actually converted, no demand is necessary. Bane v. Detrick, 52 Ill. 19; Ryan v. Brent, 42 Ill. 78; Gibbs v. Jones, 46 Ill. 317; Davidson v. Donadi, 2 E. D. S. (N. Y.) 121 ; although the defendant's original possession was lawful. Demand and refusal are only evidence of conversion, and when conversion in fact can be clearly shown, no demand is ever necessary. Davidson v. Dɔnadi, 2 E. D. S.nith (N. Y.) 121. Demand and refusal are not conclusive evidence of conversion, but prima facia only, throwing the burden upon the defendant of proving the contrary. Boyle v. Roche, 2 E. D. Smith (N. Y.) 335; and if not rebutted it is conclusive. Magee v. Scott, 9 Cow. (N. Y.) 148. Where goods are in the hands of a bona fide purchaser of converted property, a demand is necessary before an action can be brought. Sherry v. Pickens, 10 Ind. 375; Gurney v. Kenney, 2 E. D. S. (N. Y.) 132. But where the p552ssion was obtained unlawfully, a demand is never necessary. Han ly v. Wheeler, 56 lll. 152; Garry v. Madden, 3 Pick. (Mass.) 127; Carr v. Gale, Davies (U. S.) 3-8; Matheney v. Johnson, 9 Mo. 232; Witherspoon v. Blewett, 47 Miss. 570.

Where one sells property in a building occupied by him, but retains it in his possession for a special purpose, and afterwards, while the property is still there, sells the building and contents to A, with notice of the previous sale of the property, the first vendee may maintain trover against A for a subsequent sale of the property, and if a demand is first necessary, a demand made of the carriers transporting it, will be sufficient. Wooster v. Sherwood, 25 N. Y. 278; but he cannot be held chargeable if he does not set up title in himself, because he refuses to deliver the property then being upon his own premises to the plaintiff at any other place than where it then is, if he presents no obstacles to the plaintiff's taking it. Wilde v. Waters, 32 Eng. Law and Eq. 422. Trover lies for a whale which has been killed and anchored, with marks of appropriation, in favor of the captors, against any person converting it. Taber v. Jenny, Sprague (U. S.) 315; Bourne v. Ashley, I Law (U. S.) 27; Bartlett v. Budd, Id. 223. So for stock or other property pledged to secure a void contract, if demanded and delivery is refused. Consland v. Davis, 4 Bos. (N. Y.) 619. It is not necessary that a demand should be made by the plaintiff in person.

the person himself or any one else, amounts to a conversion of the chattel. If a gate has been wrongfully erected by the

or that it should be personally made by an agent; a demand in writing sent by mail, if actually received by the defendant, is sufficient. Lovejoy v. Jones, 19 N. H., 164; nor need a demand be made where an actual conversion can be proved, as a demand is merely evidence of conversion, and when possession in fact can be shown, no demand is necessary. Garvin v. Luttrell, 10 Humph. (Tenn.) 513; but it is essential to show that the plaintiff had a general or special property in the goods sued for, with a right of immediate possession, that the defendant unlawfully took the goods without the plaintiff's consent, that the defendant has assumed ownership through an illegal use or abuse of them, or a demand therefor and refusal by the defendant. Kennett v. Robinson, 2 J. J. Marsh. (Ky.) 84. Mere possession of property under a claim adverse to the plaintiff is evidence of conversion. Maxwell v. Harrison, 8 Ga. 61; Heald v. Carey, 9 Eng. Law and Eq. 429. A demand of a wife for property in the joint possession of husband and wife, and a refusal by her to deliver the property, is no evidence of conversion. Romell v. Keefe, 6 Rich. (Ill.) 521. Where property is purchased at auction upon tender of the amount for which it was struck off, on failure of the auctioneer to deliver it, trover will lie against him therefor. Simmons v. Anderson, 7 Rich. (S. C.) 67. Where a person refuses to give up property "until the end of the law," this is a conversion. Robertson v. Crane, 27 Miss. 362; but where the demand is made by an agent, and the defendant refuses to deliver it because he doubts the authority of the person making the demand, this furnishes no evidence of conversion. Ingalls v. Bulkley, 15 Ill. 224; Robertson v. Crane, ante. In order to give to a demand the effect of a conversion, the defendant must either have the possession of the property, actual or constructive, or here must previously have been a tortious taking or withholding of it, otherwise he has no power to restore it, and is absolved from liability in trover, even though ne may forcibly have interpose I obstacles in the way of the plaintiff to prevent his obtaining possession of it. Boobier v. Boobier, 37 Me. 406. Where a person purchases goods fraudulently, with notice of the plaintiff's title, his possession is wrongful, and no demand is necessary. Stevens v. Austin, I Met. (Mass.) 557; Thurston v. Blanchard, 22 Pick. (Mass.) 18. Where personal property is mortgaged and left in the possession of the mortgagee, an unqualified sale of the property by him is a wrongful conversion thereof, for which trover will lie. Ashmead v. Kellogg, 23 Conn. 70. In the case of a bailee of property for a term, the fact that the property is used for a different purpose from that for which it was hired, or was intended by the parties,

is thereby occasioned, or the act shows an intention to convert the property. Harvey

v. Epps,

12 Gratt. (Va.) 153. But if there has been such an actual conversion as sus

tains an action, the fact that the rent thereof was paid to and received by the plaintiff after the suit was brought, does not amount to a waiver of the conversion. Id. The

plaintiff

at the time of demand must have a present, immediate right of possession.

The fact that he subsequently acquires the right, will not make the de.nand operative. If he had no right to the possession at the time of making the demand, the defendant, by refusing to deliver, has not ma le himself chargeable for a conversion. He must have been in a position that he could have maintained an action at that time, for the property, otherwise his demand is premature. Clark v. Draper, 19 N. H. 419 Clapp v. Glidden, 39 Me. 448; and he must exercise dominion and control over the property inconsistent with the rights of the real owner. the property is merely in the constructive possession of the defendant, it must be so situated that it can be immediately reduced to actual possession, or returned on de.

Fuller v. Tabor, 37 Me. 519; and if

plaintiff, so as to obstruct the defendant's right of way, and the defendant pulls down and carries away the gate and places

mand, or no conversion can be predicated, unless he refuses to allow it to be taken. Thus where an officer attached certain logs then frozen in the ice, an counted then and took a receipt for them, and in a few days afterwards, the suit was settled, it was held that this did not amount to a conversion. Fernaid v. Chase, 37 Me. 28); but, if the receipt had not been taken, the officer would so far have had constructive possession as to be chargable for a conversion, if upon demand he had refused to discharge them from attachment, Id. Where an officer attaches property upon a writ, even though he does not take the property out of the hands of the debtor, yet, if by such attachment, the property is placed in the custody of the law, so as to be answerable to a judgment in the action, the officer has constructive possession thereof, and may be sued either in trespass or trover therefor; indeed in all cases where trespass will lie for goods, trover is a proper remedy, but the converse of the proposition is not true, as trespass will not always lie when trover will. Pierce v. Benjamin, 14 Pick. (Mass.) 356; Prescott v. Wright, 6 Mass. 20. If the general property in a chattel is in one who has loaned it to another for an indefinite term, the owner may maintain trover therefor against one who takes it from the custody of the bailee, whether under attachment or otherwise. Morgan v. Ide, 8 Cush. (Mass.) 420. Trover may be maintained against a postmaster for refusing to deliver a letter. Teal v. Felton, 12 How. (U. S.) 284; so it lies in favor of a purchaser against a third person having property in his possession tortiously at the time of sale. Cortland v. Morrison, 32 Me. 190; so where an agent sells the goods of his principal to pay his own debt, the vendor, with knowledge of such purpose, is liable in trover therefor to the principal; but if he sells the goods and applies the money received therefor, the title to the goods passes. Herron v. Hughes, 25 Cal. 555; Dudley v. Hawley, 40 Barb. (N. Y.) 397; Fireman's Ins. Co. v. Cochran, 27 Ala. 228. Where a person who has leased personal property to another subsequently buys of the lessor the same property, knowing that it is the property which he had leased to him, trover will not lie. Moody v. Whitney, 34 Me. 463; neither will it lie against a person who has taken a mortgage upɔn chattels from one who had acquired them tortiously, if he does not otherwise meddle with the property. This is not a conversion, actual or constructive. The Mattewan Co. v. Bentley, 13 Barb. (N. Y.) 641; but a lessee of personal property which he has hired of A, is bound to return it to A at the expiration of his lease; and the fact that he leaves the property when he has used it, and informs A that it is there, and that he can get it, will not excuse him from liability in trover. Hard v. Reed, 6 Cush. (Mass.) 252. While a tortious conversion of property furnishes the ground for a tortious action, yet it is competent in some cases where the goods have been sold, for the owner of the goods to waive the tort and sue for the proceeds. But having once waived the tort he cannot afterwards maintain trover. He has elected his remedy and is bound thereby. Fireman's Ins. Co. v. Cochran, 27 Ala. 228; Lythgol v. Vernon, 5 H. and N. (Exch.) 180; or if a note or bond has been taken in settlement; Briggs Iron Co. v. North Adams Iron Co. 12 Cush. (Mass.) 114.

Honesty of purpose is no defence to an action of trover. The fact that the defendant purchased the property under an honest belief that his vendor had the title thereto, is of no avail against the true owner. Morrill v. Moulton, 40 Vt. 242; Johnson v. Powers, Id. 611; Tallman v. Turck, 26 Barb. (N. Y.) 167; Garrand v. R. R. Co., 27 Penh. St. 154; Flanders v. Colby, 18 N. H. 34; West Jersey Co. v. Trenton R. Co., 3 Vt. (N. J.) 517; or the fact that the property was taken by mistake. Platt v. Tuttle, 23 Conn. 233. The simple question is, whether the property belongs to the plaintiff and has been converted by the defendant. If so, no defence which does not

it on his own land, in a convenient situation for the plaintiff to fetch it away, if he thinks fit so to do, this does not amount tɔ a conversion of the gate. (e) "Suppose," observes Rolfe, B., "I, seeing a horse in a ploughed field, thought it had strayed, and, under that impression, led it back to pasture, it is clear

(0) Houghton v. Butler, 4 T. R. 364.

show that a title to the property through or from the plaintiff was acquired, will avail. Motives have no influence upon the result. If the defendant sets up title in a third person in defence, it will not avail him unless he shows some title or interest in himself derived from such third person. Harker v. Dement, 9 Gill. (Md.) 7; Lowermore v. Berry, 19 Ala. 130; and no exception is made in favor of an auctioneer. Hoffman v. Currow, 22 Wend. (V. Y.) 285; Rogers v. Huil, 1 Cal. 429. Mere possession of another's property affords no evidence that the person having possession is clothed with power to sell, and he who purchases or intermeddles with it, must see to it that he is protected by the authority of one who has power to sell. Spraights v. Hawley, 37 N. Y. 441; Taylor v. Pope, 5 Cald. (Tenn.) 413 ; Gilman v. Newton, 9 Allen (Mass.) 171; Cooper v. Newman, 45 N. H. 337; Dixon v. Caldwell, 15 Ohio St. 412; but if one who is the bailee of property which in fact did not belong to the bailor, when the property is demanded of him by the true owner, does not set up title in himself, but simply asks for time in which to satisfy himself as to the title, he cannot be charged in trover until the lapse of a reasonable time in which to ascertain who the real owner is. Carroll v. Mix, 51 Barb. (N. Y.) 212; charge of PECK, J., in Hyde v. Minchester, tried at Rutland County Court, Vt., Sept. term, 1857; Dowd v. Walworth, 2 Dev. (N. C.) 139; Ogle v. Atkinson, 5 Taunt. 757; Griffin v. Alsop, 4 Cal. 406; St. John v. O'Connell, 7 Port. (Ala.) 465; Wilson v. Cook, 3 E. D. S. (N. Y.) 252; Richmond v. Nicholson, 8 Scott, 134; Ingulls v. Balkly, 15 Ill. 224; Spence v. Mitchell, 9 Ala. 744. In trover the measure of damages is the value of the goods at the time of conversion. But where the goods have been returned, the measure of damages is the value of the use or service of the goods, and any injury thereto, and reasonable expenses, other than expenses of legal proceedings, in attempting to regain them. If the plaintiff regains the possession of the goods pending the suit, if they have increased in value between the time of conversion an the time when received, the defendant is entitled to an abatement of the damages to the extent of this value, and judgment only goes for the balance. Ewing v. Blount, 20 Ala. 694; Ryburn v. Pryor, 14 Ark. 505; if the action is for certificates of stock or evidences of indebtedness, if no other proof is offered, the measure of damages is the Norman, 4 Md. 352; Keaggy v. White, 12 Ill. 99. Where there has been a temporary conversion, a subsequent return of the property is not a bar to an action for

V.

i'v.

(Mass.) 548; St. John v. O'Connell, 7 Port. (Ala.) 466; Yale v. Saunders, 16 Vt. 243;

Hunt V.

Haskell, 11 Shep. (Me.) 337. For property generally, the measure of damages

is the value of the property at the time of conversion, with interest to the time of judgment. Sturgis v. Keith, 57 Ill. 451; Turner v. Ritter, 58 Id. 264; McCormick v. Penn. Central R. R. Co. 49 N. Y. 303; Neiller v. Kelly, 67 Penn. St. 403; Hartridge, 13 Fla. 501; but see Matthews v. Coe, 56 Barb. (N. Y.) 439, where the rule was held to be the highest value of the property at any time between the conversion and the day of trial; and, where there was no wrongful taking, exemplary damages cannot be recovered. Jones v. Rabilly, 16 Minn. 320.

Robinson

V.

that an action would lie against me for a trespass; but would any man say that this amounted to a conversion of the horse to my own use"? (p) "Scratching the panel of a carriage would be an act of trespass, but no conversion of the carriage." (7) But any asportation of a chattel for the use of the defendant or some third person is a conversion of it, because it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times and in all places.

If a man has possession of my chattel and refuses to deliver it up, knowing or having the means of knowing that I am the owner of it, this is an assertion of a right inconsistent with my general dominion over the chattel, and the use which at all times and in all places I am entitled to make of it, and consequently amounts to an act of conversion. (r) Therefore, if a man who is intrusted with the goods of another puts them into the hands of a third person, contrary to orders, it is a conversion. So if the pawnee of goods, with a power of saie, sells them before the day stipulated for the exercise of the power of sale has arrived. (s) If a person, without my permission, take my horse to ride, and leave it at an inn, this is a conversion; for though I may have the horse on sending for him and paying for the keeping of him, yet it brings a charge on me, and it is different from the case of a misdelivery of goods merely owing to a mistake. () If a vendor who has sold goods on credit resells the goods before the day of payment has arrived, he is guilty of a conversion. () And so he is, though the purchaser make default in payment, unless he has given the purchaser duc notice of his intention to sell. (r) However, if a person has obtained possession of goods under color of a pretended contract of sale on credit, and with the preconceived intention of never paying for them, it is competent to the vendor to consider the contract as a nullity, and treat the fraudulent purchaser as a person who

(†)

v. Freebody, 4 C. B., N. S. 203.

(u) Chinnery v. Viall, 28 Law J., Exch. 180; 5 H. & N. 293. Martindale v. Smith, 1 Q). B. 389.

(x) Page v. Cowasjee Edulgee, L. R., r P. C. C. 127. A fortiori therefore if the vendor retakes possession of the goods and resells them. S. C.