Cox v. Cook , 96 Mass. 165 ( 1867 )

Bigelow, C. J.

We are at a loss to understand the grounds on which these exceptions rest. Treating the request of the defendant’s counsel, for a ruling that the plaintiff’s evidence was insufficient to maintain the action, as in effect a motion for a nonsuit, the refusal to grant it was not open to exception. It is well settled that if a judge is of opinion that there is evidence to be considered by the jury and declines to order a nonsuit, no exception lies to such decision. Wentworth v. Leonard, 4 Cush. 414. Manning v. Albee, ante, 7.

But aside from this, we are clearly of opinion that the decision was right. There was one question of fact concerning which the parties were at issue; namely, whether the article in controversy had been in the possession of the defendant. This is explicitly stated in the exceptions, and it was a material question on which it was the exclusive province of the jury to pass. The exceptions do not state that there was any dispute on the point of conversion. The inference would rather seem to be that it was conceded by the parties that, if it was found that the defendant had received the robe into his possession, there was adequate proof of conversion. But whether this be so or not, we cannot doubt that there was evidence on the point proper for the consideration of .the jury. A demand duly made by a person entitled to the property in a chattel and the immediate possession thereof, and a refusal to deliver it, whether manifested by words or by an omission to make any reply, is evidence which may warrant a jury in finding a conversion.

The point suggested by the defendant at the bar of this court, that the claim of the plaintiff could not be supported without showing a violation of the statute for the due observance of the Sabbath on his part, does not appear to have been raised in the court below. But, on the facts stated, we do not see that any such ground of defence was tenable. The claim of the plaintiff to the property did not necessarily require him to show in it» support a violation of the Lord’s day.

Exceptions overruled.