the property in the defendant (which would prevent the right of return after suit) have been overruled. See Brinsmead v. Harrison, Law R. 6 C. P. 584; Lovejoy v. Murray, 3 Wall. 1; Brady v. Whitney, 24 Mich. 154.

It has been supposed in Massachusetts and in Rhode Island that this doctrine would not apply to the case of the unauthorized use of property bailed on Sunday. Gregg v. Wyman, 4 Cush. 322; Whelden v. Chappel, 8 R. I. 230. But this notion has been repudiated in other States, and has recently been exploded in Massachusetts. Woodman v. Hubbard, 25 N. H. 67; Morton v. Gloster, 46 Maine, 420; Hall v. Corcoran, 107 Mass. 251; Frost v. Plumb, 13 Am. Law Reg. N. s. 537.

In Hall v. Corcoran, the defendant had hired a horse to drive to North Adams, on Sunday, for pleasure only, as both parties knew. The horse was driven beyond North Adams to Clarksburg, and on the return to the former place was injured. It was held that the defendant was liable for conversion. "The fact," said Mr. Justice Gray, "that the owner of property has acted or is acting unlawfully with regard to it is no bar to a suit by him against a wrong-doer, to whose wrongful act the plaintiff's own illegal conduct has not contributed. Thus, an action lies against one who takes and appropriates to his own use property kept by the plaintiff in violation of a statute, and therefore liable to be destroyed. Cummings v. Perham, 1 Met. 555; Ewings v. Walker, 9 Gray, 95.

"The judgment in Gregg v. Wyman is based upon two propositions: 1st. That the action, though in form tort, yet was essentially founded on a violation by the defendants of the contract of letting, in driving the horse

beyond the place specified in that contract. 2d. That if the action was not to be considered as founded on the contract, still, to make the defendants wrong-doers, it was necessary for the plaintiff to show his own illegal act in letting the horse. But, with the greatest deference to the opinion of our predecessors who concurred in that decision, we are constrained to say that we do not think that either of these propositions can be maintained.”

The learned judge proceeded to show, in support of the position of the court, that it was immaterial in trover how the defendant became possessed of the goods, whether by contract or by trespass; and he referred to the cases of conversion by infants who had been intrusted with goods, as showing that the invalidity of the contract by which pos session was obtained was of no impor

tance.

Furnes v. Sinith, 1 Rol. Ab. 530; Vasse v. Smith, 6 Cranch, 226, 331; Campbell v. Stakes, 2 Wend. 137, 144; Fitts v. Hall, 9 N. H. 441; Towne v. Wiley, 23 Vt. 355; Lewis v. Littlefield, 15 Maine, 233. "The distinction," he further observed, "between an action for misusing a horse in violation of the contract of letting, and an action for the conversion of the horse by driving it to a place without the contract, is clearly marked in the early cases in this court, in which, while the old rules of pleading prevailed, it was decided that an action for driving the horse beyond the distance agreed might be in trover, without regard to the question whether the horse had been misused; and that an action for immoderately driving the horse upon a journey authorized or assented to by the owner must be in case for the misfeasance, and not in trover for a conversion. Wheelock v. Wheelwright, 5 Mass. 104;

Homer v. Thwing, 3 Pick. 492; Rotch v. Hawes, 12 Pick. 136. See also Lucas v. Trumbull, 15 Gray, 306."

The conclusion therefore was, that the right of action was not founded in contract; and as the wrong complained of was not a breach of contract, or an abuse of the possession acquired, but a direct invasion of the plaintiff's right of property, regardless of contract, it followed that it was not necessary for the plaintiff to show the contract. And if proved by the defendants, by crossexamination of the plaintiff's witnesses or otherwise, it had nothing to do with the plaintiff's cause of action.

(i.) The mere attachment of goods already levied upon does not amount to a conversion, though the attaching officer request a person acting as agent of the debtor to look after and take care of the property, and to tell all persons who should come there that it was attached. This having no tendency to impair or interfere with the rights of the first attaching officer, he could not maintain an action for the conversion of the goods. Polley v. Lenox Iron Works, 15 Gray, 513; Fernald v. Chase, 37 Maine, 289; Rand v. Sargent, 23 Maine, 326; Bailey v. Adams, 14 Wend. 201. Nor will evidence that the creditor in the second attachment suffered the property to be sent away and sold, himself receiving the proceeds of the sale, make out a case of conversion against him. Polley v. Lenox Iron Works, 2 Allen, 182. To support the action there must be a positive tortious act. Ib.; Bromley v. Coxwell, 2 Bos. & P. 439; Dorman v. Kane, 5 Allen, 38, where it was held no conversion that goods were stolen from an officer. See the above case of Polley v. Lenox Iron Works again in 4 Allen, 329, where there was evidence

of such positive acts. So, in Fitzgerald v. Jordan, 11 Allen, 128. See also Thompson v. Moesta, 27 Mich. 182.

(j.) Where the Goods are not converted to Defendant's Use. In the foregoing classes of cases the defendant has appropriated the goods directly to his own use; but there are other cases where, without so appropriating the goods, he becomes liable for conversion. In these cases there must be an intention to deprive the owner for some period of time of the use of his property; except in the case of a common carrier, who, being an insurer, is liable for a misdelivery of goods, though it be by mistake. Devereaux v. Barclay, 3 Barn. & Ald. 704; Claflin v. Boston & L. R. Co., 7 Allen, 341.

There are many cases to illustrate an act of dominion of this kind. In Simmons v. Lillystone, 8 Ex. 431, the evidence to support a count in trover for the conversion of certain pieces of timber was that the plaintiff's timber being on the close of the defendant, he removed it, and the pieces having been again placed there, and having become embedded in the soil, the defendant directed his workmen to dig a saw-pit at the place, and in digging the pit the timber was cut through; part remaining embedded in the soil, and the rest being washed away by the water of a river flowing by. It was held that this was not sufficient evidence of a conversion. "In order to constitute a conversion," said the court, 66 'there must be an intention of the defendant to take to himself the property in the goods or to deprive the plaintiff of it. If the entire article is destroyed, as, for instance, by burning it, that would be a taking of the property from the plaintiff and depriving him of it, although the defendant might not be considered

In

as appropriating it to his own use. this case nothing is done but cutting the timber, and, by accident, it is washed away by the river, not purposely thrown by the defendant to be washed away; consequently we think that does not amount to a conversion." In Fouldes v. Willoughby, 8 Mees. & W. 540, which was trover for two horses, it appeared that the defendant was manager of a ferry from Birkenhead to Liverpool, and that the plaintiff had embarked on board the defendant's ferry-boat at the former place, having with him the horses in question. When the defendant came on board it was reported to him that the plaintiff had behaved improperly on board; and the defendant then told the plaintiff (who had paid the usual fare for the carriage of the horses) that he would not carry the horses over, and that he must take them on shore. The plaintiff refused to do so, and the defendant took them from the plaintiff and put them on shore; and they were conveyed to a hotel kept by the defendant's brother. The plaintiff remained on board, and was conveyed to Liverpool. On the following day the plaintiff sent for the horses, but they were not delivered to him. A message was, however, afterwards sent to him that he might have the horses on sending for them and paying for their keeping, and stating that if this were not done they would be sold to pay the expenses. They were accordingly sold; and this action was thereupon brought. The defence was, that the plaintiff having misconducted himself on board, the horses were put off to get rid of the plaintiff by inducing him to follow them. The judge at nisi prius told the jury that the defendant, by taking the horses from the plaintiff, and turn

ing them out of the vessel, had been guilty of a conversion, unless they thought the plaintiff's conduct justified his removal from the boat, and he had refused to go without his horses. This was held a misdirection. "Any asportation of a chattel," said Mr. Baron Alderson, "for the use of the defendant, or a third person, amounts to a conversion, for this simple reason, that 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. When, therefore, a man takes that chattel, either for the use of himself or of another, it is a conversion. So, if a man has possession of my chattel, and refuses to deliver it up, this is an assertion of a right inconsistent with my general dominion over it, 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. So the destruction of the chattel is an act of conversion; for its effect is to deprive me of it altogether. But the question here is, where a man does an act the effect of which is not for a moment to interfere with my dominion over the chattel, but on the contrary recognizing my title to it, can such an act as that be said to amount to a conversion? I think it cannot. . . . The question ought to have been left to the jury to say whether the act done by the defendant, of seizing these horses and putting them on shore, was done with the intention of converting them to his own use; that is, with the intention of impugning even for a moment the plaintiff's general right of dominion over them. If so, it would be a conversion; otherwise not." And the other judges were of the same mind.

Mr. Baron Rolfe states clearly in this case the distinction between trespass and conversion. "Suppose I," he observes, "seeing a horse in a ploughed field, thought it had strayed, and, under that impression, led it back to pasture, it is clear that an action of trespass would lie against me; but would any man say that this amounted to a conversion of the horse to my own use? [See Wilson v. McLaughlin, 107 Mass. 587, a still stronger case of this kind.] Or suppose a man drives his carriage up into an inn-yard, and the innkeeper refuses to take it and his horses in, but turns them out into the road, could it be said that he thereby converted them to his own use? Surely not. The same principle applies to the case which has been cited of Bushell v. Miller, 1 Strange, 128, where a party was held to have a right to move certain goods of another person, provided he put them back again; his not putting them back may give the other a right to bring trespass against him, on the ground that his subsequent neglect made him a trespasser ab initio ; but it is clear that there was no conversion of the chattel."

There are other cases which show that one may deprive another of the possession of his goods without being guilty of conversion. In Thorogood v. Robinson, 6 Q. B. 769, the plaintiff's goods and servants were on land which the defendant had recovered in ejectment. The defendant, upon entering under his writ of possession, turned the plaintiff's servants off the land, and would not let them remain for the purpose of removing the plaintiff's goods. There had been no demand and refusal, however; and it was held that the jury were justified in finding that there had been no conversion. The ground of

the decision was that the defendant's entry was rightful, and that his turning off the servants was proper. The plaintiff, it was conceded, had a right to the goods; but he should have sent some one with a proper authority to demand and receive them. If the defendant had then refused to permit the taking away of the goods, there would have been a clear conversion. See Guthrie v. Jones, 108 Mass. 191, where it was held that for a landlord to refuse to allow his tenant to remove certain chattels attached by him to the realty, but which were not fixtures, was a conversion.

The

Thorogood v. Robinson was decided upon the authority of Needham v. Rawbone, 6 Q. B. 771, note. In that case it appeared that the plaintiff had left his house, and in it the goods in question, in the care of his servant. defendant entered the premises, alleging an authority from the Court of Chancery, placed a man in charge of the house, took an inventory of the goods, locked up the rooms containing them, prevented the plaintiff's servant from having access to the rooms, and finally obliged him to quit the premises, leaving the property under the defendant's control. The Lord Chief Justice thought there was no evidence of a conversion, and directed a nonsuit. Upon a rule nisi being granted for a new trial, Lord Denman said that it did not appear by the evidence that the plaintiff had not acquiesced in the taking, or that he might not have had the use of the goods if he had desired. But some two weeks later, after advisement, the court, without further observation, ordered the rule to be made absolute. This appears to have been upon the ground that the question should have been submitted to the jury; for the objection of the plaintiff in Thorogood v.