Strickland v. Barrett , 37 Mass. 415 ( 1838 )

Per Curiam.

The Court are of opinr n, that the -nstruc-' cion to the jury was right. The action was trover against the two defendants jointly ; and to charge them both it was necessary to prove a joint conversion. If therefore the defendant Barrett was liable at all, it was not merely for that part of the goods, carried by his own teams, but for the goods removed generally. If he was so liable, it was because he had confederated with Hill to enable him to withdraw goods, to which the plaintiff had title ; upon the principle, that where two or more unite to do a tortious act, all are principals and jointly liable. If he was brought within this principle, by procf of a confederacy with Hill, then Hill’s conversion was his conversion ; if he was not confederate with Hill, then as upon the state of the proof he had not taken any of the goods into his own possession, or actually converted them, he was not liable as on a joint conversion, for the goods actually removed by Hill.

As to the other point, if Barrett did not act in concert with Hill, or with any intent to deprive the plaintiff of his property, then the mere removal of a portion of it, from one place to another, at the request of Brown, was not of itself a conversion, because Brown, as mortgager in possession, had a right of possession, and might lawfully direct such removal, if it was not done with intent to injure the mortgagee and deprive him of his property. If Brown had such an intent and was confederate with Hill, yet if Barrett did not know it or assent to it, then his act done at the request of Brown, would not be a conversion.

Judgment on the verdict.