buildings insured were “not vacant and unoccupied,” for a period of more than 10 days, in that sense. The premises were not occupied for nearly three months between the date of the policy and the fire. Little or no furniture of sufficient value to remove was left in the house, which was remote from habitations,—-five miles in one direction, and two in the other. There was no person in the vicinity whose duty or interest required him to have any care over it. The house was open; the windows, some broken, some entirely gone; and it was exposed to the incursions of chance travelers, pleasure seekers, sportsmen, and tramps. Nothing short of destruction, which subsequently came, could have added to the abandoned character of the premises and the desolation which sat upon _ them. The facts all point to one conclusion. There is no circumstance showing, or tending to show, that the buildings were not “vacant and unoccupied,” and there was no evidence showing, or tending to show, that the risk was not increased. There is no fact that lessens or modifies the force of the facts that show increased danger.

It does not alter the case that the plaintiff did not know of the vacancy and non-occupancy until the time of reoccupation. Reasonable care required that he should have known of the tenant’s removal, and it was his duty to see that the terms of the contract were carried out. Sleeper v. Insurance Co., supra. The defendants did not consent to the non-occupancy. They were not informed of it until after the fire, and even in the plaintiff’s proof of loss he failed to give this material information. The parties could not have intended such an abandonment of the premises as the case shows, and at the same time not have intended that they would be “vacant and unoccupied,” in the sense in which those words were used in the forfeiture clause of the policy.

There being no evidence competent to be submitted to the jury that the buildings were not, for more than 10 days after the insurance, “vacant and unoccupied,” and vacancy and non-occupancy being manifest from undisputed evidence, the motion of the defendants for a verdict should have been granted, and the exception to the refusal is sustained.

Judgment for the defendant.

CARPENTER and BINGHAM, J J ., did not sit. The others concurred.

ACTION—AT LAW—IN EQUITY—AMENDMENTs—SPECIFIC PERFORMANCE.

When, in an action at law. it appears upon the facts found that a decree for specific performance of parol agreements would be ordered, on a bill filed for that purpose by the defendant, the same result may be reached by appropriate amendments and orders; and the plaintiff may be entitled to a Judgment, and the defendant to a decree.

Reserved case from Hillsborough county.

Case for obstructing a way. Facts found by the court. November 13, 1873, the defendant sold to Sullivan, the plaintiff’s grantor, a strip of land with a barn on it, together with a right to take water from awell on his adjoining premises, the right to a clothes-yard on his land, and also the right to a passage-way to and from the barn on a strip of land south of the premises conveyed; reserving to O’Neil during life the right to the use of the barn in common with the grantee. Sullivan and the defendant used the barn in common until 1879, when it was burned. The de— fendant contended that after the barn was burned Sullivan had no right of way. The court ruled otherwise, and the defendant excepted. Subject to the plaintiff’s exception, evidence was introduced of a parol agreement of the parties, directly after the fire, that the defendant surrender his right to rebuild'the barn or further occupy the land on which it ' stood, and that Sullivan surrender his right of way. In execution of these agreements, the defendant built his shed where it now stands, and Sullivan built the L part of his house partly on the ground on which the barn stood, and has otherwise occupied it. The court found that these agreements have been executed, and that the effect of their executiOn was an abandonmentby Sullivan of the east end of the way, and that the plaintiff was bound by it; that the plaintiff, in the reasonable use of his rights to take water at the well, and hang clothes in the defendant’s yard, was entitled to pass into. the defendant’s yard without going around through Van Buren street; and that the defendant’s building of a fence, without a gate, across the way, was a violation of the plaintiff’s rights.

W. W. Bailey, for plaintiff. ~

A. F. Stevens and E. E. Parker, for defendant.

CLARK, J. The grant of the right to take water from the well, and hang clothes in the defendant’s yard, carried with it the right to a reasonable passway to and from the well and yard. Bean v. Coleman, 44 N. H. 539. What is a reasonable way is a question of fact. The finding of the court, upon competent evidence, that the plaintiff, in the reasonable enjoyment of his right to take water from the well, and hang clothes in the defendant’s yard, was entitled to a passway into the defendant’s yard without going around through Van Buren street, and that the building of the fence Without a gate by the defendant was a violation of the plaintiff’s reasonable use, raises no question of law.

It is unnecessary to consider, and we do not decide, whether the grant by the defendant to. the plaintiff in the deed of November 13, 1873, of a passage-way to and from the barn, in connection with a reservation of a right to use the barn in common with the plaintiff, was a grant of a general right of passage for all purposes, (Abbott v. Butler, 59 N. H. 317; Noyes v. Hempht'll, 58 H. 536; French v. Marat/in, 32 N. H. 316; S. C. 2.4 N. H. 440;) nor whether the right was surrendered and aban- ' doned by the executed agreement of Sullivan and the defendant in 1879, (Pope v. Devereux, 5 Gray, 409 ; Dyer v. Sanford, 9 Metc. 395, 402; Hayford v. Spokesfield, 100 Mass. 491; Corning v. Gould, 16 VVend. 531; 2 Washb. Real Prop. 58—60.) A decision of these questions is not essen

tial to the determination of the rights of the parties. The court finds

that directly after the fire in 1879 the then owners, Sullivan, the plaintiff ’s grantor, and the defendant, verbally agreed, in substance, that the defendant surrender his right to rebuild the barn or occupy the land on which it stood, and that Sullivan surrender his right of way from the west corner of the defendant’s present shed back to the east line of the lot; and in execution of these agreements the defendant immediately built his shed where it now stands, and Sullivan built an addition to his house on a portion of the ground on which the barn stood, and has otherwise occupied the rest of it; and so the court finds that the verbal agreements were executed. Upon the evidence and these findings a decree for specific performance of the parol agreements would be ordered, upon a bill filed for that purpose, and the same result is readily reached inthis action.

At the trial term the defendant may file with the clerk a release of all claim to the barn-lot, and amend his plea by filing a bill for specific performance of the parol agreements, asking that the plaintiff be ordered to execute a release of the passway to and from the barn-lot. Metcalf v. Gilmore, 59 N. H. 417; Owen v. Weston, 63 N. H. 599; S. C. 4 Atl. Rep. 801. Upon this being done, the cause having been fully heard, the defendant will be entitled to a decree for a release of the easterly portion of the passway, (Roulo v. Valcour, 58 N. H. 347,) and the plaintiff will be entitled to judgment on the verdict.

FELKER and another 12. RICHARDSON and another.1
(Supreme Court of New Hampshire. July 30, 1886.)

Reserved case from Strafford county.

Bill in equity to compel the defendants to execute a contract, the original being lost. Tried by the court, who found for the plaintiffs.

J. G. Hall, for plaintiffs.

Worcester (c Gufney, for defendants.

CARPENTER, J.

for the plaintiff.

No question of, law is presented by the case. Decree

2. SAME—CONVERSION—EXERCISING DOMINION. One exercising dominion over property in exclusion or defiance of the owner’s right, whether for his own or another’s use, is guilty of a conversion of it.

Bill of exceptions from Sullivan county.

Trover for 12 tons of hay. Tried by the court. The facts are stated in the opinion. Verdict for the plaintiff, and the defendant excepted.

Mr. Baker, for plaintiff.

C. A. Dole, for defendant.

SMITH, J. August 17, 1878, the plaintiff conveyed by quitclaim deed the Bosworth farm to the defendant; the deed containing no special reservation of any hay, or right to remove any. October 24, 1878, W. 0. Bosworth and others conveyed the Bosworth farm to the defendant, not reserving any hay, or right to remove any. On the same day, by an agreement in writing, with provisions by which Bosworth might be entitled to a deed of the farm, the defendant leased the farm to Bosworth, who was then in the occupation of it, and sold to him all his interest in the hay thereon. July 29, 1878, the plaintiff attached all the hay in the two barns on the Bosworth farm, as the property of Bosworth, on a writ against Bosworth and others, the oflicer leaving a copy of the writ and of his return with the town clerk. The plaintiff recovered judgment, and took out execution, October 9, 187 8, and October 18th the officer advertised the hay in the south barn for sale. At the time and place advertised, the defendant attended, and forbade the sale by the officer. The sale was thereupon adjourned from time to time until November 15, 1878, when the old hay and one undivided half of the new hay in the south barn was sold by the officer to the plaintiff. On two or three occasions after the execution sale the defendant notified the plaintiff that he must not remove the hay, claiming that he had bought it of the plaintiff with the farm. These conversations occurred away from the farm. The defendant was not in possession of the farm after October 24, 1878, and did not, after that date, sell, move, use, or in any way meddle with the hay, except as above stated. Bosworth used the hay before the next spring. The plaintiff never personally demanded it of any one in possession of the farm or barns.

The question, on these facts, is whether there was evidence from which it was competent to find a conversion of the hay by the defendant. It having been lawfully attached, the officer had constructive possession of it, equivalent in law to actual possession, until the sale. Johnson v. Farr, 60 N. H. 426; The attachment gave the plaintiff no title to the property, and no right to it, or to its possession. It gave him a statutory lien upon it, with the right to hold Bosworth’s interest in the property at the time of the attachment to satisfy his debt, provided he should obtain judgment, and should reasonably sue out execution, and cause the officer to take the hay, and apply its avails in satisfaction of the judgment. If the defendant’s act in forbidding the sale was a conversion, it gave the officer a cause of action, but it was not assignable, and the plaintiff cannot rely upon a conversion which took place before he acquired a title to the property. Tome v. Dubois, 6 Wall. 548, 554. But the purchase of the hay by the plaintiff from the officer who had the legal custody of it gave him a good title to it, and the right to its immediate possession. Delivery of the hay by the officer was not necessary to constitute a valid sale. The legal right to the possession drew to it the possession. .Balme v. Hutton, 9 Bing. 471, 477.

As the defendant is not liable to the plaintiff by reason of anything he did in regard to the hay before the sale, the question, then, is whether the notification to the plaintiff after the sale not to remove it, accompanied with a claim by the defendant that he bought it with the farm, was evidence of a conversion. Any distinct act of dominion wrongfully exerted over another’s property in denial of his right, or inconsistent with it, is a conversion. It is not necessary that there should be a manual taking of the property. If the wrong-doer exercises a dominion over it in exclusion or defiance of the owner’s right, whether it be for his own or another’s use, it is in law a conversion. Cooley, Torts, 448; 2 Greenl. Ev. § 642. “The very denial of goods to him that has a right to demand them is an actual conversion, and not only evidence of it, 'as has been holden; for what is a conversion but an assuming upon one’s self the property and right of disposing of another’s goods? And he that takes upon himself to detain another man’s goods from him without cause takes upon himself the right of disposing of them.” HOLT, C. J., in Baldwin v. Cole, 6 Mod. 212.

Although the defendant did not have the possession of the hay after the sale, orthe right to control the movements of Bosworth, there was evidence that both understood, after the sale, that Bosworth was authorized by the defendant, as vendor, to use the hay, and that was a conversion by the defendant. He had sold it for a price to Bosworth. His claiming that he bought it of the plaintiff, and his forbidding the plaintiff to remove it, then in the actual possession of Bosworth, was evidence from which it was competent to find that his purpose was to enable his vendee to consume the hay, and that, for the purpose of this case, its conversion by his vendee, authorized by the vendor, was the act of the vendor. In authorizing and aiding Bosworth to convert it to his own use, he became liable to the plaintiff in trover. Flanders v. Colby, 28 N. H. 34. When several join in the conversion, trover will lie against either of them. Pattee v. Gilmore, 18 N. H. 460. There was evidence from which it was competent to find a conversion by the defendant. Exceptions overruled.