Glaze v. M'Million , 7 Port. 279 ( 1838 )

GOLDTHWAITE, J.

— The evidence before the jury, when this cause was tried, may be considered as establishing, that the plaintiff below, was the owner of the watch said to have been converted. That it was in the possession of the plaintiff in error, a short time before the institution of the action, and had been stolen from the defendant in error, by one Merritt. No claim of property was asserted by the plaintiff in error, to the watch, 'and no acts of ownership were proved against him, and all inference as to the existence of the one or the other, is expressly negatived by the bill of exceptions. On this evidence, the Circuit court instructed the jury, that under these circumstances, the plaintiff below was entitled to recover, if they should believe the watch was his property, and that proof of a demand and refusal was unnecessary.

To maintain the action of Trover, there must be property in the plaintiff, and a conversion by the defendant. In this case, the property is admitted to be the plaintiff’s, but the conversion is denied. It therefore becomes necessary to ascertain what is evidence of a conversion, and whether any facts were before the jury, from which it could be properly inferred.

It is believed that all conversions may be divided into four distinct classes.

1. By & wrongful taking;

2. By an illegal assumption of ownership;

3. By an illegal user or misuser; and

4. By a wrongful detention — Bull. N. P. 44; 2 Saund. 47, E.

In the three first named classes, there is no necessity for a demand and refusal, as the evidence arising from the acts of the defendant, is sufficient to prove the conversion. In the latter class alone, is such evidence to he required, as the mere detention of a chattel furnishes no evidence of a disposition to convert it to the holder’s use, or to divest the true owner of his property.

If the position assumed by the defendant’s counsel, is correct, another class of conversions must be created; as it is certain that the case supposed of property stolen, and coming into the hands of an innocent person, does not fall within either of the classes we have named.

Let us, however, test the principle, which is asserted —that every one who comes into the possession of property of which the owner is illegally dispossessed, is guilty of a conversion, and liable to an action of trover, without demand, and consequently, without notice.

It is admitted, that an innocent finder of property is not liable to this action, unless he assumes to be the owner, illegally uses or misuses, or detains the property after demand by the owner; and yet if the property has been stolen, or illegally acquired by a wrongful taker, it may, notwithstanding, come to the possession of another, without any fault; and if so, he cannot stand in a less favorable light than a finder.

The evidence does not disclose how the plaintiff in error obtained possession : for any thing which appears, he may have received it from the thief, or have found it. Be his possession of what character it may, he cannot be charged with the unlawful detainer, until some fault is put on him by evidence. The law will not presume him to be a tortfeaser without proof, and the bill of exceptions shews a complete want of any evidence to charge him.

The instructions given to the jury were erroneous, and for this cause the judgment must be reversed, and the cause remanded.

We have not adverted to the other position, because, if costs are improperly taxed against a defendant, he can review it in another manner; but he has no right to complain of an error which can in no way affect him, even if the discharge of a co-defendant, without giving him costs, can be so considered.