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right of the plaintiff in a civil action, for even under the old forms he might "waive the trespass"; though as regards the possibility of the wrong-doer being criminally liable it may still be a vital question, trespass by taking and carrying away the goods being a necessary element in the offence of larceny at common law. But the definition of theft (in the first instance narrow but strictly consistent, afterwards complicated by some judicial refinements and by numerous unsystematic statutory additions) does not concern us here. The "property" of which the plaintiff is deprived - the subject-matter of the right which is violated-must be something which he has the immediate right to possess; only on this condition could one maintain the action of trover under the old forms. Thus, where goods had been sold and remained in the vendor's possession subject to the vendor's lien for unpaid purchase-money, the purchaser could not bring an action of trover against a stranger who removed the goods, at all events without payment or tender of the unpaid balance (a).

But an owner not entitled to immediate possession might have a special action on the case, not being trover, for any permanent injury to his interest, though the wrongful act might also be a trespass, conversion, or breach of contract as against the immediate possessor (b). As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these lastmentioned cases.

What amounts to conversion.

On the other hand, the

name has been thought altogether objectionable by con

(a) Lord v. Price (1874), L. R. 9 Ex. 54, 43 L. J. Ex. 49.

(b) Mears v. L. & S. W. R. Co. (1862), 11 C. B. N. S. 850, 31 L. J. C. P. 220. This appears to have been overlooked in the reasoning if not in the decision of the

Court in Coupé Co. v. Maddick, '91, 2 Q. B. 413, 60 L. J. Q. B. 676, which assumes that a bailor for a term has no remedy against a stranger who injures the chattel.

siderable authorities (c): and certainly the natural meaning of converting property to one's own use has long been left behind. It came to be seen that the actual diversion of the benefit arising from use and possession was only one aspect of the wrong, and not a constant one. It did not

(c) See 2 Wms. Saund. 108, and per Bramwell L. J., 4 Ex. D. 194.

What amounts to conversion. Any act of dominion wrongfully exercised over property in denial of the owner's right, or inconsistent with it, is a conversion. McPheters v. Page, 83 Me. 234; 22 At. Rep. 101; Baker v. Beers, 64 N. H. 102; 6 At. Rep. 35; Frome v. Dennis, 45 N. J. L. 515; Gordon v. Stockdale, 89 Ind. 240. See Robertson v. Hunt, 77 Tex. 321; 14 S. W. Rep. 68; Rhodes v. Dickinson, 79 Ga. 724; 4 S. E. Rep. 154; Rodney Hunt Mach. Co. v. Stewart, 57 Hun, 545; 11 N. Y. S. Rep. 448; Lewis v. Ocean Nav. & Pier Co., 125 N. Y. 341; 26 N. E. Rep. 301; Olds v. Chicago etc., 33 Ill. App. 445; Thomson v. Gortner, 73 Md. 474; 21 At. Rep. 371; Balling v. Kirley, 90 Ala. 215; 7 So. Rep. 914; Omaha A. & S. Co. v. Rogers, 35 Neb. 61; 52 N. W. Rep. 826; Smith v. Wood, 63 Vt. 534; 22 At. Rep. 575; Johnson v. Farr, 60 N. H. 426; Miller v. Thompson, 60 Me. 322; Reeve v. Fox, 40 Ill. App. 127; Loeffel v. Pohlman, 47 Mo. App. 574; Petrie v. Williams, 68 Hun, 589; 23 N. Y. S. Rep. 237; Williams v. Smith, 153 Pa. St. 462; 25 At. Rep. 1122; Sanborn v. Hamilton, 18 Vt. 590; Alexander v. Swackhamer, 105 Ind. 81; 4 N. E. Rep. 433; Hewes v. Platts, 12 Gray, 143.

To maintain trover, there must be either, (1) a taking from the owner without his consent; (2) an assumption of ownership; (3) an illegal use or abuse of it; or (4), proof of demand and refusal. Kennett v. Robinson, 2 J. J. Marsh. 84. See Parker v. First Nat. Bank (N. D.), 54 N. W. Rep. 313; Lopp v. Pinover, 27 Ill. App. 169. Hence, it is held, that manual taking of property is not necessary to constitute conversion, if there is actual attempt at disposal. Webber v. Davis, 44 Me. 147; Dickey v. Franklin Bank, 32 Me. 572.

The adulteration of liquor by a common carrier thereof is a conversion. Dench v. Walker, 14 Mass. 500; Young v. Mason, 8 Pick. 551. But a mere delay in transportation is no conversion. Briggs v. New York, etc., R. Co. 28 Barb. 515.

funds is guilty of conSo is a carrier deliver

A bank mingling a special deposit with general version, Monmouth Bank v. Dunbar, 19 Ill. 558. ing goods to officers under an illegal attachment. Gibbons v. Farwell, 58 Mich. 233; 29 N. W. Rep. 855.

One selling chattels not his own is liable for conversion though he believed he was selling his property. Morrill v. Moulton, 40 Vt. 242; Johnson v. Powers, Id. 611. It is a rule that the innocent motive of a party converting property is no defence, but may be proved to reduce

matter to the plaintiff whether it was the defendant, or a third person taking delivery from the defendant, who used his goods, or whether they were used at all; the essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion.

The grievance is the unauthorized assumption of the powers of the true owner. Actually dealing with another's goods as owner for however short a time and however limited a purpose (d) is therefore conversion; so is an act which in fact enables a third person to deal with them as owner, and which would make such dealing lawful only if done by the person really entitled to possess the goods (e). It makes no difference that such acts were done under a mistaken but honest and even reasonable supposition of being lawfully entitled (d), or even with the intention of benefiting the true owner (e); nor is a servant, or other merely ministerial agent, excused for assuming the dominion of goods on his master's or principal's behalf, though he acted under an unavoidable ignorance and for

(d) Hollins v. Fowler (1875), L. R. 7 H. L. 757, 44 L. J. Q. B. 169.

(e) Hiort v. Bott, L. R. 9 Ex. 86, 43 L. J. Ex. 81.

exemplary damages. Waverly T. & I. Co. v. St. Louis Cooperage Co., 112 Mo. 383; 20 S. W. Rep. 566; Baltimore & O. R. Co. v. O'Donnell, 49 Ohio St. 489; 32 N. E. Rep. 476; Benton v. Beattie, 63 Vt. 186; 22 At. Rep. 422; Lahner v. Hertzog, 23 Ill. App. 308; Williams v. Deen (Tex. Civ. App.), 24 S. W. Rep. 536; Kenney v. Ranney (Mich.), 55 N. W. Rep. 982.

In general, an agent making demand for his principal must give a fair proof of authority or the refusal will not sustain trover. Robertson v. Crane, 27 Miss. 362; Watt v. Porter, 2 Mass. 77.

If a refusal is the result of a reasonable doubt in a doubtful matter trover will not lie. Robinson v. Burleigh, 5 N. H. 225; Zachray v. Pace, 9 Ark. 212; Carroll v. Mix, 51 Barb. 212. But the refusal must be distinctly put on that ground. Ingalls v. Bulkley, 15 Ill. 224.

A qualified refusal is not conversion per se. Thomas v. Sixpenny Bank, 5 Bosw. 293; Ward v. Moffitt, 38 Mo. App. 395.

Recovery in trover bars plaintiff's title to the property. Kenyon v. Woodruff, 33 Mich. 310. But not if the judgement is unsatisfied. Atwater

his master's benefit" (f). It is common learning that a refusal to deliver possession to the true owner on demand is evidence of a conversion, but evidence only (g); that is, one natural inference if I hold a thing and will not deliver it to the owner is that I repudiate his ownership and mean to exercise dominion in spite of his title either on my own behalf or on some other claimant's. "If the refusal is in disregard of the plaintiff's title, and for the purpose of claiming the goods either for the defendant or for a third person, it is a conversion" (h). But this is not the only possible inference and may not be the right one. The refusal may be a qualified and provisional one: the possesssor may say, "I am willing to do right, but that I may be sure I am doing right, give me reasonable proof that you are the true owner": and such a possessor, even if over-cautious in the amount of satisfaction he requires, can hardly be said to repudiate the true owner's claim (i). Or a servant having the mere custody of goods under the possession of his master as bailee say the servant of a warehouseman having the key of the warehouse may reasonably and justifiably say to the bailor demanding his goods: "I cannot deliver them without my master's . order"; and this is no conversion. "An unqualified refusal is almost always conclusive evidence of a conversion; but if there be a qualification annexed to it, the question

(f) Stephens v. Elwall (1815), 4 M. & S. 259; admitted to be good law in Hollins v. Fowler, L. R. 7 H. L. at pp. 769, 795, and followed in Barker v. Furlong, '91, 2 Ch. 172, 60 L. J. Ch. 368. Cp. Fine Art Society v. Union Bank of London (1886), 17 Q. B. Div. 705, 56 L. J. Q. B. 70.

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(g) Balme v. Hutton, Ex. Ch. (1833) 9 Bing. 471, 475.

(h) Opinion of Blackburn J. in Hollins v. Fowler, L. R. 7 H. L. at p. 766.

(i) See Burroughes v. Bayne (1860), 5 H. & N. 296, 29 L. J. Ex. 185, 188, supra, p. 427.

v. Tupper, 45 Conn. 144; Singer Mfg. Co. v. Skillman, 52 N. J. L. 263; 19 At. Rep. 260; Pryor v. Portsmouth Cattle Co., (N. M.) 27 Pac. Rep. 327. If the property is returned the damages are nominal. Barrelet v. Bellyard, 71 Ill. 280. But a return may be refused. Kelly v. McDowall, 39 Ark. 387. A judgment for a conversion of chattels will bar a judgment for the recovery of any chattels covered by that act of conversion. McCaffrey v. Carter, 125 Mass. 330.

then is whether it be a reasonable one" (k). Again there may be a wrongful dealing with goods, not under au adverse claim, but to avoid having anything to do with them or with their owner. Where a dispute arises between the master of a ferryboat and a passenger, and the master refuses to carry the passenger and puts his goods on shore, this may be a trespass, but it is not of itself a conversion (1). This seems of little importance in modern practice, but we shall see that it might still affect the measure of damages.

In many cases the refusal to deliver on demand not only proves but constitutes the conversion. When this is so, the Statute of Limitation runs from the date of the refusal, without regard to any prior act of conversion by a third person (m).

By a conversion the true owner is, in contemplation of law, totally deprived of his goods; therefore, except in a few very special cases (n), the measure of damages in an action of trover was the full value of the goods, and by a satisfied judgment (o) for the plaintiff the property in the goods, if they still existed in specie, was transferred to the defendant.

Acts not amounting to conversion. The mere assertion of a pretended right to deal with goods or threatening to prevent the owner from dealing with them is not conversion, though it may perhaps be a cause of action, if special damage can be shown (p); indeed it is doubtful

(k) Alexander v. Southey (1821), 5 B. & A. 247, per Best J. at p. 250.

(1) Fouldes v. Willoughby, 8 M. & W. 540; cp. Wilson v. McLaughlin (1871), 107 Mass. 587.

(m) Miller v. Dell, '91, 1 Q. B. 468, 60 L. J. Q. B. 404, C. A.

(n) See per Bramwell L. J., 3 Q. B. D. 490; Hiort v. L. & N. W. R. Co. (1879), 4 Ex. Div. 188, 48 L. J. Ex. 545, where how. ever Bramwell L. J. was the only mem

ber of the Court who was clear that there was any conversion at all.

(0) Not by judgment without satisfaction; Ex parte Drake (1877), 5 Ch. Div. 866, 46 L. J. Bk. 29; following Brinsmead v. Harrison (1871), L. R. 6 C. P. 584, 40 L. J. C. P. 281.

(p) England v. Cowley (1873), L. R. 8 Ex. 126, see per Kelly C. B. at p. 132, 42 L. J. Ex. 80.

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