property hired for one purpose and appropriated or used for another. In such a case the abuse terminates the bailment, and the owner may retake his property without demand, or sue for its value. It has been made a question whether the pledgee of property repledging it without authority before the debt is paid for which he held it, does not thereby terminate the bailment so as to render him liable for a conversion; but it is settled that he does not. Neither would he had the pledge been sold instead of repledged.' This, it will be observed, was a case in which the plaintiff was not, according to the contract of bailment, entitled to have the property restored to him until his debt was paid. Had the pledgee held the property subject to the owner's order, a sale or a mere delivery to another, without right,' would have constituted a conversion and rendered demand of possession unnecessary. And he would have held it subject to the owner's order had he purchased it of one who had no authority to sell it." A man acquires rightful possession of chattels if they are upon land at the time he recovers it in ejectment, and trover will not lie for their conversion until after demand and refusal *to allow the plaintiff to take them away. There need, [*454] however, be no formal demand in such a case, for if the

owner attempts to remove his property, and is not suffered to do so, his attempt is equivalent to a demand."

1 Donald ⚫. Suckling, L. R. 1 Q. B. 585.

2 Halliday . Holgate, L. R. 3 Exch. 299. Compare Bulkeley v. Welch, 31 Conn. 339; Baltimore, &c., Co. v. Dalrymple, 25 Md. 269; Lawrence v. Maxwell, 53 N. Y. 19.

'Bloxam v. Hubbard, 5 East, 407, See Rosenweig v. Frazer, 82 Ind. 342. Syeds v. Hay, 4 T. R. 260.

right, and treats the property as his own, is not entitled to a demand. See, also, Trudo . Anderson, 10 Mich. 357; Prime v. Cobb, 63 Me. 200. • Thorogood v. Robinson, 6 Q. B. 769. See Witherspoon v. Blewett, 47 Miss. 570.

7 Badger . Batavia Paper Co,, 70 Ill. 302. See, also, Woodis v. Jordan, 62 Me. 490. Merely selling and "Kimball. Billings, 55 Me. 147, giving a deed of land by the landlord citing Coles. Clark, 3 Cush. 399. is no conversion of the tenant's fixThe property was government bonds, tures; the tenant's right to take them received and sold by the defendant in away is not affected by the convey. good faith, but of course his good Davis v. Buffum, 51 Me. 160, faith could not protect him when citing Burnside v. Twitchell, 43 N. sued by the owner for the conversion. H. 390. If a refusal is based on a It was held in Gilmore . Newton, 9 claim of title, a demand for a buildAllen, 171, that one who receives pos- ing is sufficient though demandant session from another who had no has not at hand means to take it

ance.

The refusal to surrender possession in response to a demand is not of itself a conversion; it is only evidence of a conversion, and like other inconclusive acts is open to explanation.' It may, for instance, be shown that the property has perished, or been lost without the bailee's fault, and that he does not surrender possession simply because it has become impossible. In any case where at the time of the demand the defendant has neither the actual nor constructive possession, and, therefore, cannot deliver the property in response to the demand, his liability is in no manner affected by the demand and refusal; for if he had been guilty of a conversion before, the demand was unnecessary, and if he had not been, a failure to do what for any reason he was unable to do, could not render him so. Still the dernand may, even under such circumstances, have this importance: it may put the defendant apparently in the wrong, and throw upon him the burden of showing why he fails to surrender the property.

away. Edmundson v. Bric, 136 Mass. 189.

'Thompson v. Rose, 16 Conn. 71; Sturges v. Keith, 57 Ill. 451; Coffin v. Anderson, 4 Blackf. 395; Beckman v. McKay, 14 Cal. 250; Dietus v. Fuss, 8 Md. 148; Gordon v. Stockdale, 89 Ind. 240. But it is sufficient evidence if one holds wrongfully. Weston v. Carr, 71 Me. 356.

2 Dearbourn v. Union National Bank, 58 Me. 273; Jefferson v. Hale, 31 Ark. 286. As where it was taken from him by an armed force without his fault. Abraham v. Nunn, 42 Ala. 51. See Griffith v. Zippenwick, 28 Ohio, (N. s.) 388.

Davis v. Buffum, 51 Me. 160. See Hill v. Belasco, 17 Ill. App. 194. A refusal must be shown. Taylor v. Hanlon, 103 Penn. St. 504. Refusal to comply with a premature demand is no evidence of conversion. Hagar v. Randall, 62 Me. 439. If demand is made by an agent, and is not complied with because the agent gives no evidence of authority, this does not make out a conversion. Watt v.

Potter, 2 Mason, 77. Compare Ingalls v. Bulkley, 15 Ill. 224; Robinson v. Burleigh, 5 N. H. 225. So, if de mand is made on an agent for property held by him for his principal, his refusal to deliver does not render him liable in trover. Carey . Bright, 58 Penn. St. 70. If at the time of demand the property is present, and no objection is made to its being taken, and the only refusal is a refusal to carry and deliver it to the owner at his home, this is no conver sion, even though defendant ought to have so carried it. Farrar v. Rollins 37 Vt. 295. There must be a defini'e demand and refusal. Ware . First Cong. Soc., 125 Mass. 584. Instances Richards. Pitts Ag'l Wks, 37 Hun, 1; Ingersoll v. Barnes, 47 Mich. 104; Wykoff v. Stevenson, 46 N. J. L. 326. A qualified reasonable refusal for the purpose of ascertaining ownership is not enough. Buffington e. Clarke, 8 Atl. Rep. 247 (R. L.); Flannery ↑ Brewer, 33 N. W. Rep. 522 (Mich); Butler v. Jones, 80 Ala. 436.

*Conversion by Tenant in Common. The authorities [*455] are irreconcilably at variance as to what may constitute

a conversion by one tenant in common of his co-tenant's interest, agreeing only in this, that a culpable loss or destruction by one will render him liable. The rule in England is that neither a claim to exclusive ownership by one, nor the exclusion of the other from possession, nor even the sale of the whole, can be treated in the law as the equivalent of loss or destruction, or be considered a conversion; and this rule is adopted in some cases in Vermont, and in North Carolina it is also followed, but with this qualification, that a sale of the property out of the State may be treated as a loss or destruction. But in other cases any sale of the whole interest by one tenant in common has been held a conversion. And in still others it has been held that even a sale is not necessary to make out a conversion; that the doctrine that one tenant in common cannot maintain trover against his co-tenant without proving a loss, destruction, or sale of the article, applies only to things in their nature so far indivisible that the share of one cannot be distinguished from that of the other. It can have no reasonable application to such com

1

Mayhew . Herrick, 7 C. B. 229; Hyde v. Stone, 9 Cow. 230; White . Brooks, 43 N. H. 402.

2 Mayhew . Herrick, 7 C. B. 229. See Barnardistone v. Chapman, Bull. N. P. 34.

Tubbs . Richardson, 6 Vt. 442; Sanborn v. Morrill, 15 Vt. 700; Barton v. Burton, 27 Vt. 93; Lewis v. Clark, 59 Vt. 363. So levy of attachment where possession is not changed. Spaulding . Orcutt, 56 Vt. 218. In Maine, the mere claim to the exclusive ownership of a horse is held to be no conversion. Dain v. Cowing, 22 Me. 347. See Symonds v. Harris, 51 Me. 14. See Osborn v. Schenck, 83 N. Y. 201. But if one distinctly appropriates the whole to his own use, is. Needham v. Hill, 127 Mass. 133. See Baylis v. Cronkhite, 39 Mich. 413. And in Gilbert v. Dickerson, 7 Wend. 449, the same ruling was made where the property was not only de

it

tained from the co-tenant, but locked up. Mere detention is not enough. Heller v. Hufsmith, 102 Penn. St. 533.

4 Pitt o. Petwey, 12 Ired. 69. Or if perishable, has so acted that the other cannot recover it. Grim v. Wicker, 80 N. C. 343. See Shearin . Rigsbee, 1 S. E. Rep. 770 (N. C).

5 Wilson v. Reed, 3 Johns. 175; Hyke v. Stone, 9 Cow. 230; Gilbert v. Dickerson, 7 Wend. 449; Mumford v. McKay, 8 Wend. 442; Dyckman v. Valiente, 42 N. Y. 519; Weld v. Oliver, 21 Pick. 559; White . Brooks, 43 N. H. 402; Neilson v. Slade, 49 Ala. 253; Courts v. Happle, 49 Ala. 254; Green v. Edick, 66 Barb. 564; Wheeler v. Wheeler, 33 Me. 347; Sullivan v. Lawler, 72 Ala. 74; Goell v. Morse, 126 Mass. 480; Person v. Wilson, 25 Minn. 189; Shepard . Pettit, 30 Minn. 119.

modities as are readily divisible, by tale or measure, into portions absolutely alike in quality, such as grain or money. Thus, if one is entitled to the half of a certain number of bushels of wheat, he is entitled to the half in severalty; and if his co-tenant in actual possession refuse to surrender the half on demand, and deny his right, this is a conversion, because it deprives [*456] him of his right as effectually as *would a sale.1 In a subsequent case this doctrine was applied to an interest in a machine which one of the tenants in common had taken and annexed to the freehold, denying the right of the other.'

Bailees. It is no conversion by a common carrier or other bailee who has received property from one not rightfully entitled to possession, to deliver it in pursuance of the bailment, if this is done before notice of the rights of the real owner. After such notice he acts at his peril. A delivery to the party entitled to the possession will be a protection to him, and he may defend in the right of such party before delivery.*

v. Griffith, 24 N. Y. 595. Refusal to sever a share where the property is easily separable is a conversion. Stall o. Wilbur, 77 N. Y. 158; Burns v. Winchell, 44 Hun, 261. Of course trover will not lie where one has only a right to have an undistinguished portion of a greater quantity set out to him, but the title to which has never passed. Morrison . Dingley, 63 Me. 553. See Browning v. Hamilton, 42 Ala. 484; Lehr v. Taylor, 90 Penn. St. 381. Nor where property is not susceptible of exact division in quality, and has not been sold, lost or destroyed. Balch v. Jones, 61 Cal. 234.

2 Grove v. Wise, 39 Mich. 161. See, also, Strickland v. Parker, 54 Me. 263. It is a conversion of a joint owner's interest in a note if the other joint owner takes it for collection and surrenders it to the maker for cancelment. Winner . Penniman, 35 Md.

163. If one tenant in common takes the joint property and disposes of it to a third person for uses not justified by the joint holding, the other cotenant may maintain trover against the purchaser. Agnew . Johnson, 17 Penn. St. 373. See Collins . Ayres, 57 Ind. 239.

Nelson . Iverson, 17 Ala. 216; Burditto. Hunt, 25 Me. 419. See Nelson v. Anderson, 1 B. & Ad. 450, Morris v. Hall, 41 Ala. 510; Nanson v. Jacob, 6 S. W. Rep. 246 (Mo.)

Sheridan v. New Quay Co., 4 C. B. (N. 8.) 619; Ogle . Atkinson, 5 Taunt. 759; Thorne v. Tilbury, 3 H. & N. 534; Biddle v. Bond, 6 Best & S. 225; Hardman v. Willcock, 9 Bing. 382; King v. Richards, 6 Whart. 418; Bates v. Stanton, 1 Duer, 79; Bliven v. Hudson R. R. R. Co., 36 N. Y. 403; Young v. East Ala. &c., Co., 80 Ala. 100. See Dusky . Rudder, 80 Mo. 400. It is a defense to the bailee if goods are taken from him on legal process. Bliven v. Hudson R. R. R. Co., 35 Barb. 188, and 36 N. Y. 403;

Extent of Injury. Trover is most commonly brought when a complete conversion of the property has taken place, but as it lies in all cases where one makes an unlawful use of another's personalty, the injury is sometimes very small. Thus, if

one *hires a horse for one journey, and starts with him [*457] in an opposite direction on another, a conversion has then

taken place, and the owner may bring suit. But here, if the bailee returns the horse before the trial, as he may, the owner is not injured to the extent of his value, since the horse has only temporarily been converted to the wrong-doer's use, and the injury is likely to be small, perhaps nominal. But where the conversion is complete, the injury suffered, of course, is the value of what is converted. Even this *statement does [*458] not fully cover the ground, for the value may depend largely on the time when the conversion is deemed to have taken

Wells. Thornton, 45 Barb. 390; Van Winkle v. Mail, &c., Co., 37 Barb. 122; Burton v. Wilkinson, 18 Vt. 186; Pingree v. Detroit, &c., Co., 33 N. W. Rep. 298 (Mich). See Stiles . Davis, 1 Black, 101. Compare Kiff . Old Colony, &c., Co., 117 Mass.

591.

1 Where an actual conversion has taken place, but the property still exists, and the wrong-doer offers to return it, the owner is under no obligation to take it back. Higgins v. Whitney, 24 Wend. 379; Otis v. Jones, 21 Wend. 394; Hanmer v. Wilsey, 17 Wend. 91; Brewster . Silliman, 38 N. Y. 423. If he does take it back, this does not bar his right of action, but goes in mitigation of damages. Gibbs v. Chase, 10 Mass. 125; Brewster . Silliman, 38 N. Y. 423.

2 Although the consideration of damages more properly belongs to a work specially devoted to the remedies for torts, it may not be inappropriate here to say, that in respect to actions of trover, the rule of damages has always been more or less unsettled. When the conversion was complete, it has been held in some cases that

the plaintiff should be entitled to the highest market price between the time of conversion and the time of trial. Markham v. Jaudon, 41 N. Y. 235; Burt v. Dutcher, 34 N. Y. 493; Romaine v. Van Allen, 26 N. Y. 309; Morgan v. Gregg, 46 Barb. 183; Wilson v. Matthews, 24 Barb. 295; Carter v. DuPre, 18 S. C. 179. At least, that the jury might award this in their discretion. Greening v. Wilkinson, 1 C. & P. 625; Ewing v. Blount, 20 Ala. 694; Jenkins v. McConico, 26 Ala. 213; Loeb v. Flash, 65 Ala. 526. Especially if the property was subject to considerable fluctuations in value. Douglass v. Kraft, 9 Cal. 562; Hamer v. Hathaway, 33 Cal. 117. Now allowed by code. Fromm v. Sierra, &c., Co., 61 Cal. 629. But a more just rule obviously is that which gives just indemnity to the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of; and this, where the article converted was always in market, may, perhaps, be the market value at the time of the conversion, and any advance thereon that may have taken place within a