Bristol v. Burt , 7 Johns. 254 ( 1810 )

Per Curiam.

The only point made in this case is, whether there was sufficient evidence of a conversion to justify the verdict.

There were declarations and acts of the defendant united to form a control over the plaintiff’s property. The very denial of goods to him that has a right to demand them, says Lord Holt, in Baldwin v. Cole, (6 Mod. 212.) is a conversion ; for what is a conversion but an assuming upon one’s self the property and right of disposing of another’s goods ? And he that takes upon himself to detain another man’s goods from him without a cause, takes upon hSmse the .right of disposing of them. The bare denial to deliver is "not always a conversion, as in Thimblethorpé’s case, (cited in 2 Bulst. 310. 314.) where a piece of timber was left upon the land of the defendant by the lessee at the expira» tion of his term, and he was requested to deliver it and refused, but suffered the timber to lie without intermeddling with it. The reason why this was held not to be a conversion was, that there was no act done or dominion exercised ; but in the present case there were the highest and most unequivocal acts of dominion and control over the property; not only by claiming jurisdiction over it, but in placing armed men near it, to prevent its removal. This fact js, of itself, a conversion. It is intermeddling with the property in the most decisive manner, and detaining it for months in the storehouse. It was therefore bringing a charge upon the plaintiff; and this, says Mr. Justice Buller, in Syeds v. Hay, (4 Term Rep. 260.) amounts to a conversion. ther the case of M'Combie v. Davies, (6 East. 538.) nor the anonymous case in 12 Mcd. 344.. were so strong as this, and yet th~ conversion was maintained. It was assuming the dominion of the property which was made by Lord Ellen rough the test of the conversion, though the property in that case Jay not in the defendant's, but in the king's wareS house. The definition of a conversion in trover, as given by Mr. Gwillim, the editor of Bacon, and now a judge in 1)idia, applies precisely to this case. (6 Bac. Abr. 6774 "The action being founded upon a conjunct right of perty and possession, any act of the der,ied. NEW-YGR!~. Nov. 1810 KENT V. Welch. 1~iotion denied, A. KENT agaim~l WELCh. THIS was an action of covenant. The dec1aratiot~ stated, that by a deed, dated the 3d of IUàrch, 1784, and lii irn action on a covenant con~ 1~ined in a deed ylich the grantor (``gave,grantcd,?' &c. and engaged to -warrant and defend the land against all claims, &e. it was held, that no action enuld~be maintained either on the implied Or exprese covenant, without alleging and proving an eviction; and that the express warranty qualified and s~cstrained any implied covenant of seisin arising from

We are, therefore, of opinion, that the motion to set aside the verdict must be denied.

1~iotion denied