removed. This is not sufficient to furnish a basis for the present action. For it must be remembered that if the defendant is liable at all, it is for the value of the goods. But how unjust that would be! The plaintiff's man was left in possession. Miss Morley could not legally take away the goods. If she did, the plaintiff could maintain an action against her for their wrongful removal. Yet he is also to be able to recover their full value against the defendant. . . .

MARTIN, B. I think this rule should be made absolute. The real question is whether the defendant "converted to his own use, or wrongfully deprived" the plaintiff of his goods. Now it appears that the plaintiff had a bill of sale over the goods of one Morley, whose landlord the defendant was. After sunset on the 11th of August, 1827, when a distress was impossible, the plaintiff, who had previously put a man in possession, went himself to the house with the view of removing the goods, there having been a default under the bill of sale. The defendant could not distrain that evening, but, in order to have the opportunity of distraining, he told the plaintiff he would prevent the goods being removed, and he took steps accordingly, placing a policeman to watch the house and to prevent the removal. I think this was a conversion. The plaintiff was not bound to resist the defendant, and to remove his goods at the peril of coming into collision with him. He was deprived, by the plaintiff's act, of the power over his goods which he was entitled to exercise. That is, in my opinion, enough to enable him to maintain this action. If the defendant had been in the room where the goods were, and had said to the plaintiff, "These goods shall not be removed," surely that would have been a "wrongful deprivation." The defendant was, in fact, not in the room but in the passage, with equal means, however, of stopping the removal. I can see no difference between the two cases.

[POLLOCK, B., and KELLY, C. B., agreed with BRAMWELL, B.]

Rule discharged.

300. MORSE v. HURD

SUPREME COURT OF JUDICATURE OF NEW HAMPSHIRE. 1845

17 N. H. 246

TRESPASS, for taking and carrying away a carpet, on the 29th day of August, 1843. The writ was dated August 30, 1843. The plaintiff introduced evidence that the defendant, on the 29th day of August, having a writ against Ephraim Thayer, came into the shop kept by Thayer, and told him he had instructions to attach the carpet. Thayer informed the defendant that the carpet belonged to the plaintiff. The defendant then left, but shortly after returned and said he would attach it. The carpet was in an inner room, and a witness testified that the defendant did not go into that room, and he did not know that the

defendant saw the carpet that day. The plaintiff also offered the return of defendant, as sheriff, on the writ against Thayer, as follows, namely: "Strafford, ss. Aug. 29, 1843. I have attached one carpet, the property of the within named Thayer, valued at ten dollars, and on the eighth day of September, 1843, I gave the within named Thayer a summons, etc. . . .

There was evidence to show that the carpet was the property of the plaintiff, and that Thayer carried on the shop, where it was at the time, as agent for him. The carpet remained at the same place until the 18th day of December following, when the defendant sold it on the execution which had issued against Thayer. . . .

Marston, for the defendant. There is nothing proved here that constitutes a trespass, and the action cannot be maintained. . . .

Hale & Wiggin, for the plaintiff. To maintain trespass de bonis asportatis, evidence of a public taking is not required. He who interferes with my goods, and, without delivery by me, and without my consent, undertakes to dispose of them as having the property general or special, does it at his peril, to answer to me the value of the goods in trespass of trover. . . . Trespass de bonis asportatis is maintained by proof that the defendant unlawfully exercised an authority over the chattels of another, against the will of the owner, though there was no manual taking or removal.

WOODS, J. The defendant, having a writ which it was his duty, as a deputy sheriff, to secure by attaching the chattel in question, on the 29th of August, 1843, came into the shop of Thayer, adjoining the room in which the chattel at the time was kept, which room also appears to have been in the possession of Thayer, and gave notice to him of his instructions for attaching it. At the same time he made a return upon the writ, to the effect that he had attached the carpet, and afterwards returned the writ into court. Do these facts amount to evidence of a taking and carrying away of the chattel, as alleged in the declaration? It is apparent that the officer had access to and opportunity to attach the carpet, and he made return of the fact upon the writ.

In order that a chattel may be attached, it is only necessary that the officer have the possession and control of it. It is not necessary that he remove it, or even touch it; but if he have access to it, and manifest a purpose of exercising control over it, this is sufficient to disturb the possession of any one having had a prior custody of it, and to lay the foundation of an action in his favor, if such disturbance is not warranted by the occasion. Odiorne v. Colley, 2 N. H. Rep. 66; Huntington v. Blaisdell, id. 318. A cause of action is furnished, if the plaintiff's possession of the chattel has been disturbed, so that he could not, for the time being, had he chosen to do so, exercise that perfect control over the chattel which he might have done but for the adverse act of the party complained of; and the taking and carrying away, which the form of action requires to be alleged, is sufficiently established by the

proof of such disturbance of the owner's possession. In short, an attachment is perfected when the officer has obtained access to the goods with a purpose of attaching them. Such attachment vests the possession in the officer, so that he may maintain an action for the disturbance of it. The possession of the officer excludes the possession of all others; and the owner of chattels, whose possession is disturbed, may maintain an action of trespass de bonis asportatis against him who so disturbs it without right. Miller v. Baker, 1 Met. 27. . . . There must be Judgment on the verdict.

301. LORING v. MULCAHY

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1862

3 All. 575

TORT for the conversion of goods which had been stolen from the plaintiff's shop, and carried to the defendant's house, with his knowledge, and left in his possession, and afterwards taken away and secreted by the same persons who carried them there. At the trial in the Superior Court, Putnam, J., instructed the jury that "if the defendant received these goods into his possession and control, knowing that they were stolen, or that they were not the property of the parties who brought them, and that they came unlawfully by them, it was a conversion by the defendant." The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

W. P. Webster, for the defendant.

L. H. Wakefield, for the plaintiff.

METCALF, J. These exceptions must be sustained. On the evidence therein stated, the defendant did not convert the goods to his own use, but was a mere depositary thereof,- a naked bailee. He did not assume to dispose of them as if they were his own, nor did he withhold them from the plaintiff on his demand. Non constat that he would not readily have restored them to the plaintiff if he had been required so to do. It does not appear that he had any intention to conceal the property from the owner, or that he made any agreement with the bailors to secrete it. In Simmons v. Lillystone, Baron Parke says: "In order to constitute a conversion there must be an intention of the defendant to take to himself the property in the goods, or to deprive the plaintiff of it." See also Polley v. Lenox Iron Works, and cases there cited; Fouldes v. Willoughby. If, on the evidence in this case and the instructions given to the jury, the defendant was rightly found guilty of converting the goods to his own use, then would an inn-keeper, who should receive into his stable a horse that he knew to be stolen, and should permit the person who brought him there to take him away, be guilty of converting the horse to his own use.

Exceptions sustained.

302. POWELL v. SADLER

NISI PRIUS. 1806

Paley, Principal and Agent (3d edition), 80; reprinted from Ames' & Smith's Cases on Torts, 1st ed., vol. I, p. 297

TROVER for three horses. Plaintiff had sent the horses to defendant to be sold the next day; defendant's clerk told him the next day would not be so good a time to sell them as the following sale day; in consequence of which the plaintiff said he would send for them back again, which he did the next evening, but they had been sold. In a conversation concerning the sale, the defendant said, "it was a mistake of his clerk, for which he was not answerable."

Garrow, for the defendant, insisted that there was no evidence of a conversion.

Lord ELLENBOROUGH, C. J. I am of opinion that a conversion has been proved; the horses were intrusted to the defendant for a qualified purpose, which he has admitted was not conformed to. Where goods are committed to one for a qualified purpose, any deviation from it in the disposition of them is a conversion; as if a man borrow a horse to ride, and leave him at an inn, it has been held to be a conversion.

APPEAL from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, affirming a judg ment of the General Term of the Marine Court of the city of New York, which affirmed a judgment in favor of defendant, entered upon a ver

dict.

This action was for the alleged conversion of a promissory note, the property of plaintiff, made by one Holly, payable to plaintiff's order. The facts appear sufficiently in the opinion.

James C. Carter, for the appellant. Defendant's act in parting with the note did not amount to a conversion.

Samuel Hand and Patterson & Major, for the respondent. Defendant was liable for a conversion.

CHURCH, Ch. J. The defendant received a promissory note from the plaintiff made by a third person and indorsed by the plaintiff, and gave a receipt therefor, stating that it was received for negotiation, and the note to be returned the next day or the avails thereof. The plaintiff testified in substance that he told the defendant not to let the note go out of his reach without receiving the money. The defendant,

after negotiating with one Foote about buying the note, delivered the note to him under the promise that he would get it discounted and return the money to defendant, and he [Foote] took away the note for that purpose. Foote did procure the note to be discounted, but appropriated the avails to his own use.

The Court charged that if the jury believed the evidence of the plaintiff in respect to instructing the defendant not to part with the possession of the note, the act of defendant in delivering the note, and allowing Foote to take it away, was a conversion in law, and the plaintiff was entitled to recover.

Conversion is defined to be an unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. A constructive conversion takes place when a person does such acts in reference to the goods of another as amount in law to appropriation of the property to himself. Every unauthorized taking of personal property, and all intermeddling with it, beyond the extent of the authority conferred, in case a limited authority has been given, with intent so to apply and dispose of it as to alter its condition or interfere with the owner's dominion, is a conversion. (Bouv. Law Dict., title Conversion.) Savage, Ch. J., in Spencer v. Blackman (9 Wend. 167), defines it concisely as follows:

"A conversion seems to consist in any tortious act by which the defendant deprives the plaintiff of his goods."

pos

In this case the plaintiff placed the note in the hands of the defendant for a special purpose not only, but with the restricted authority (as we must assume from the verdict of the jury), not to part with the session of the note without receiving the money. The delivery to Foote was unauthorized and wrongful, because contrary to the express directions of the owner. The plaintiff was entitled to the absolute dominion over this property as owner. He had the right to part with so much of that dominion as he pleased. He did part with so much of it as would justify the defendant in delivering it for the money in hand, but not otherwise. The act of permitting the note to go out of his possession and beyond his reach was an act which he had no legal right to do. It was an unlawful interference with the plaintiff's property which resulted in loss, and that interference and disposition constituted, within the general principles referred to, a conversion.

And the authorities, I think, sustain this conclusion, by a decided weight of adjudication. A leading case is Syeds v. Hay (4 T. R. 260), where it was held that trover would lie against the master of a vessel who had landed goods of the plaintiff contrary to the plaintiff's orders, though the plaintiff might have had them by sending for them and paying the wharfage. Butler, 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, it is a conversion."