Robinson was that the court should have ruled that the facts there proved constituted a conversion, and in reply to this Needham v. Rawbone was cited. However, if it had also appeared that there had been a demand of the goods and a refusal to deliver them, the court would doubtless have decided that there was a conversion, and not left the question to the jury. These cases must therefore be accepted with caution on this point. In Bushel v. Miller, 1 Strange, 128, it appeared that upon the Custom-House quay there was a hut, in which particular porters were accustomed to place small parcels of goods until they could be put on shipboard. Each of the porters, and among them the plaintiff and defendant, had a particular box or cupboard in the hut. The plaintiff, upon the occasion in question, put in goods in such a way that the defendant could not get to his box without removing them. He did accordingly remove them the distance of a yard, and without returning them went away, and the goods were lost. It was held that, though the defendant might be liable in trespass, there was no conversion.

The owner's goods were delivered to a third person in Syeds v. Hay, 4 T. R. 260. There the captain of a vessel carrying the plaintiff's goods had disobeyed the plaintiff's orders to land the goods on the wharf against which the vessel was moored, and, contrary to his own promise, delivered them to the wharfinger, though for the plaintiff's use, under the impression that the wharfinger had a lien upon the goods for wharfage fees; and it was held that, upon demand and refusal, it was a case of conversion, unless the captain (the defendant) could establish the wharfinger's right. Buller, J., said: "If one man, who is intrusted with the goods of another, put

them into the hands of a third person, contrary to orders, that is a conversion. If a person take my horse to ride, and leave him at an inn, that 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."

(k.) Demand and Refusal. In most of the cases above stated, proof of the wrongful act of the defendant is sufficient to establish a conversion, without evidence of a demand for the goods and a refusal to restore them. In other cases, a demand and refusal are essential to the action. In every instance, as Chitty remarks, it is judicious to demand the restitution of the goods, or, if they cannot be returned, a recompense equivalent to their value and the amount of the damages sustained, previously to the commencement of proceedings. 1 Pleading, 157.

Refusal to restore the goods upon demand is only evidence of conversion; and whenever the conversion can be otherwise proved, it is not necessary for the plaintiff to show a demand and refusal. Gilmore v. Newton, 9 Allen, 171. As where a horse was purchased from one who had no right to sell it, and was used by the purchaser as his own. Ib. But these steps are a necessary part of his case where the defendant became, in the first instance, lawfully possessed of the goods, and the plaintiff is not prepared to prove some other distinct conversion. 2 Wms. Saund. 47 e; 1 Chitty, Pleading, 157; Witherspoon v. Blewett, 47 Miss. 570; Hardy v. Wheeler, 56 Ill. 152. Thus, in Nixon v. Jenkins, 2 H. Black. 135, where a trader, on the eve of bankruptcy, made a collusive sale of goods, it was held that his assignees could not maintain trover for them without proving a de

mand and refusal. The reason given was that the parties were competent to contract; and there was no unlawful taking of the goods, though the transaction was liable to be impeached. The assignees, it was said, might affirm or disaffirm the contract; and if they thought proper to disaffirm it, they should have demanded the goods, and a refusal would then have been evidence of a conversion.

But if the defendant had sold the goods, having no title to them as against the assignees, this would have been a distinct act of conversion, rendering a demand unnecessary. Bloxam v. Hubbard, 5 East, 407. And so, where the assignees, under a wrongful commission in bankruptcy, have required the supposed bankrupt to deliver to them his books, he may sue them in trover without first demanding their return, for here is also a distinct act of conversion. Summersett v. Jarvis, 3 Brod. & B. 2.

It is held, also, that no demand is necessary where the defendant has refused to deliver the goods to any one, though the plaintiff was not at the time owner of the goods. Delano v. Curtis, 7 Allen, 470.

In Jones v. Fort, 9 Barn. & C. 764, where bills of exchange had been delivered by a trader to a creditor in contemplation of bankruptcy, with a view of giving the creditor a preference, and the amount due upon the bills was received by him after the bankruptcy, it was held that without a demand and refusal upon the creditor by the debtor's assignees, there was no conversion. The bills being in the hands of the defendant, it was his duty to receive the money when due.

It is held in a late case that an action for the conversion of interest coupons

of United States bonds cannot be maintained by the owner, from whom they have been stolen, against one who has received them, as an agent for exchange, in good faith and without gross negligence, from a party to the theft, and has transferred them by delivery and paid the proceeds to his principal before any demand made upon himself. Spooner v. Holmes, 102 Mass. 503.

Be

But the most common case of the necessity of demand and refusal is where goods are put into the hands of another for a special purpose, upon an agreement to return them when the purpose is accomplished; as to which the rule of law is that a breach of the contract by the mere failure so to return the goods does not amount to a conversion. fore the bailee can be liable in trover in such case, if there was no misappropriation or other act of dominion, there must be a demand for the goods and a refusal to restore them. Severin v. Keppell, 4 Esp. 156. See also Booraem v. Crane, 103 Mass. 522, where the goods were intoxicating liquors, under the ban of the statute.

A refusal to deliver the goods upon due demand is, however, only prima facie evidence of a conversion. Lockwood v. Dull, 1 Cowen, 322; Irish v. Cloyes, 8 Vt. 33, 110; Thompson v. Rose, 16 Conn. 71. See Johnson v. Couillard, 4 Allen, 446. For the party may have lost the goods without fault. And as against persons who had ceased to be members of a firm, and are sued with the others in trover, demand and refusal are not even prima facie evidence of conversion. Sturges v. Keith, 57 Ill. 451.

And a refusal made bona fide on the ground that the defendant is not satisfied that the party making the demand is the owner of the goods, or authorized

to receive them, is no evidence of a conversion. Sargent v. Gile, 8 N. H. 325; Leighton v. Shapley, ib. 359; Dent v. Chiles, 5 Stewt. & P. 383; Watt v. Porter, 2 Mason, 77.

If the demand be not made upon the defendant himself, but merely left at his house, during his absence, it seems that a reasonable time and opportunity to restore the goods should be suffered to elapse before the defendant's non-comcompliance with the demand can be treated as a refusal amounting to a conversion. The non-compliance with the demand after a reasonable opportunity to obey it has been afforded is tantamount to a refusal, and is presumptive evidence of a conversion, casting upon the defendant the burden of explaining that the omission to deliver the goods is not a conversion. 1 Chitty, Pleading, 160; White v. Dewary, 2 N. H. 546; Thompson v. Rowe, 16 Conn. 71. See also Wellington v. Wentworth, 8 Met. 548. Without satisfactory explanation the evidence is conclusive. Edgerly v. Whalan, 106 Mass. 307.

In a recent case it was held erroneous to refuse to instruct the jury that no recovery can be had in an action for conversion unless it shall appear that before the demand and refusal the defendant had actually converted the goods, or that, at the time of the demand and refusal, he had it in his power to give up the property. Johnson v. Couillard, 4 Allen, 446.

The demand should usually be made of the party in possession; but in an action against a sheriff for an attachment of goods exempt, the plaintiff may put in evidence a demand upon the indemnifying creditor for a restoration and a refusal by him. Mannan v. Merritt, 11 Allen, 582.

It has been a point of serious difficulty whether the taking possession of goods by the vendee of a bailee having no authority to sell was such an act of conversion as to make the vendee liable in trover without a demand. The affirmative view has been maintained in Hyde v. Noble, 13 N. H. 494; Galvin v. Bacon, 2 Fairf. 28; Parsons v. Webb, 8 Greenl. 38; Stanley v. Gaylord, 1 Cush. 536; Riley v. Boston Water Power Co., 11 Cush. 11; Freede v. Anderson, 10 Mich. 357; Whitman Mining Co. v. Tritle, 4 Nev. 494; Soames v. Watts, 1 Car. & P. 400; Yates v. Carnseed, 3 Car. & P. 99; Hurst v. Gwennop, 2 Stark, 306. See also Hilbery v. Hatton, 2 H. & C. 822; Chandler v. Ferguson, 2 Bush, 163; Deering v. Austin, 34 Vt. 330.

In Galvin v. Bacon, Weston, J., said: "Whoever takes the property of another without his assent, express or implied, or without the assent of some one authorized to act in his behalf, takes it, in the eye of the law, tortiously. His possession is not lawful against the true owner. That is unlawful which is not justified or warranted by law; and of this character may be some acts which are not attended with any moral turpitude. A party honestly and fairly, and for a valuable consideration, buys goods of one who had stolen them. He acquires no rights under his purchase. The guilty party has no rightful possession against the true owner; and he could convey none to another. The purchaser is not liable to be charged criminally, because innocent of any intentional wrong; but the owner may avail himself against him of all civil remedies provided by law for the protection of property."

This reasoning seems unanswerable when not applied to cases where the

owner has himself facilitated the defendant's act; as where he has put his goods into the hands of another to prevent their attachment, and they have been sold by the bailee without authority. Quare, whether, without fraud, a person, by putting goods into the hands of an agent or bailee who sells and delivers them, could not be said to have facilitated the taking? See the language of Wilde, J., in Stanley v. Gaylord, 1 Cush. 536, 558.

In New York, Pennsylvania, Indiana, Kentucky, and Connecticut, the doctrine of the above cases has been denied, and a demand deemed necessary. Marshall v. Davis, 1 Wend. 109; Barrett v. Warren, 3 Hill, 348; Pierce v. Van Dyke, 6 Hill, 613; Nash v. Mosher, 19 Wend. 431; Talmadge v. Scudder, 38 Penn. St. 517; Wood v. Cohen, 6 Ind. 455; Sherry v. Picken, 10 Ind. 375; Justice v. Wendell, 14 B. Mon. 12; Parker v. Middlebrook, 24 Conn. 207. See also 2 Greenleaf, Evidence, § 642.

Mr. Justice Metcalf, in Stanley v. Gaylord, supra, refers to the following English cases also as bearing somewhat against the doctrine held by him: Cooper v. Chitty, 1 Burr. 20; Smith v. Milles, 1 T. R. 475; Wyatt v. Blandes, 3 Campb. 396; Carlisle v. Garland, 7 Bing. 298; s. c. 10 Bing. 452; Potter v. Starkie, 4 Scott, 718; Lazarus v. Waithman, 5 Moore, 313; Price v. Helyar, 4 Bing. 597; Dillon v. Langley, 2 Barn. & Ad. 131. See also Samuel v. Norris, 6 Car. & P. 620, where a mere seizure of goods by strangers, who afterwards relinquished possession, was held not a conversion.

In New York a distinction is maintained between the case of a taking by delivery of the bailee in cases of this

can.

Weld v. Oliver, 21 Pick. 559; Wilson v. Reed, 3 Johns. 175; Hyde v. Stone, 9 Cowen, 230; Gilbert v. Dickerson, 7 Wend. 449; Mumford v. McKay, 8 Wend. 442; Dyckman v. Valiente, 42 N.Y. 549; White v. Brooks, 43 N. H. 402; Dain v. Cowing, 22 Maine, 347; Arthur v. Gayle, 38 Ala. 359; Williams v. Chadbourne, 6 Cal. 559.

In Weld v. Oliver the court say: "Upon recurring to the origin of the doctrine so frequently stated, that one tenant in common cannot maintain trover against his cotenant unless there has been a destruction by him of the property thus holden in common, I think it will be found to have been originally asserted with reference to the right of one tenant in common to sue his cotenant in an action of trover, for the exclusive use and possession of the common property, and the denying to the other any participation in the same; and when thus applied it is entirely correct, upon the familiar principle that the possession of one cotenant is the possession of both, and he who has the present possession cannot be ousted. It is very clear that one tenant in common cannot maintain an action of trover against his cotenant for the

mere act of withholding from him the use of a chattel, the rights of both being such that he who has the possession cannot be guilty of a conversion by retaining it. Nor can one tenant in common object to the mere sale by the other of the interest of the vendor in the common property, and a delivery over of the chattel to the purchaser. Such a right results from the nature of the relation between the parties; and to this inconvenience each must be subject, the mere change of possession under such circumstances being no conversion. But the question arises, whether this be not the limit beyond which if one cotenant passes he subjects himself to an action by the other tenant for the conversion of his share of the property. The ordinary evidence of conversion is the unlawful taking or detention of goods from the possession of the true owner; but it is equally true that he who undertakes to dispose of my goods as his own property, thereby subjects himself to an action of trover. May not the assumption of property in, and a sale of, my undivided moiety by my cotenant be equally a conversion by him of the moiety belonging to me, as the sale by a stranger of an article in which I had the entire interest is a conversion of the whole property by the stranger?"

ing the right of their cotenants. For a sale, therefore, of a chattel an action of trover will lie by one tenant in common against another."

In White v. Brooks the doctrine is put on the ground that a sale determines the common tenancy, upon the authority of 1 Chitty, Pleading, 40. And it was, therefore, held that trover or indebitatus assumpsit might be maintained by the injured tenant for his share of the proceeds of the sale against his cotenant, or trover against the purchaser.

As to this last position, it is to be observed that the cases cited by Chitty do not sustain him; and the doctrine must, probably, be limited to the case of an election by the injured tenant. He may elect to consider the tenancy terminated, and bring an action for money had and received against his cotenant (Sanborn v. Morrill, 15 Vt. 700); and whether he may bring trover against him or not, the cases hold that he cannot bring trover against the purchaser, at least, before a sale by him of the absolute property. Dain v. Cowing, 22 Maine, 347; Kilgore v. Wood, 56 Maine, 150. See Trammell v. McDade, 29 Tex. 360. And the reason is clear. The sale, whatever it purported, could not convey the plaintiff's interest without his consent; and the purchaser would only acquire the position of a cotenant with him, taking the position of the vendor. See Ruckman v. Decker, 8 C. E. Green, 283.

In England and in several of the States of the Union it is held that trover is not maintainable in cases of this kind. Farrar v. Beswick, 1 Mees. & W. 682; Morgan v. Marquis, 9 Ex. 145; Mayhew v. Herrick, 7 Com. B. 229; Webb v. Danforth, 1 Day, 301; Oviatt v. Sage, 7 Conn. 95; Tubbs v. Richardson, 6