No. 3535. Book 4, tit. 9, chap. 2, sec. 2, § 3, art. 3. No. 3535. will be insufficient. (a) For this reason, as well as because a written demand can be better proved, it is better to make the demand in writing, and authorize the party in possession to deliver the goods to the agent. As no one has a right to make a demand except the owner, or one authorized by him, it follows, that the demand must be made by or on behalf of the owner entitled to the goods, at the time of the demand made; if, therefore, the bailor sell the goods during the time of bailment, the purchaser, and not the bailor, is the party, after the sale, to demand the goods of the bailee, and, on refusal, to bring trover.(b) When two persons are jointly entitled to the possession of the chattel, a demand of one is not sufficient without the authority of the other; as if two persons, jointly interested in the chattel, deposit it with the defendant, one cannot demand the possession of it alone; but unless the bailee receive them on the joint account, a demand by the party depositing it, is sufficient, notwithstanding any agreement between such person and another, unknown to the bailee, that the latter should hold them on joint account; and the reason appears to be, that the bailee was not answerable to such unknown person, under such circumstances. (c) (3.) Of whom a demand must be made. 3535. The demand ought to be made, if possible, of the person who holds the goods in his own right, personally; but when that cannot be done, then a (a) 2 B. & P. 464, note a. See West v. Tupper, 1 Bailey, 193; Watt v. Potter, 2 Mason, 77; but where there is no request to see the authority, and the refusal to deliver the property turns upon other and distinct grounds, the demand will be good. 2 Mason, 77. See Beckley v. Howard, 2 Brev. 94; Spence v. Mitchell, 9 Ala. 744. (b) 4 Bingh. 106. See 5 M. & S. 105. (c) May v. Harvey, 13 East, 197. No. 3536. Book 4, tit. 9, chap. 2, sec. 2, § 3, art. 3. No. 3536. notice of the ownership of the goods, and a demand to deliver them, should be delivered at the party's house, in writing;(a) but it may be doubted whether this would be sufficient, unless followed by an absolute and general refusal to deliver up the goods; particularly where there is no obligation on the party to incur the trouble or expense of removing, or carrying, or sending the goods from his house to that of the claimant; as where he had found them.(b) It is immaterial whether the person of whom the goods are demanded has them in his actual possession or not, if they are under his control, as if they are in the hands of his servants, and he has a controlling power over them, the demand will be sufficient; if, on the other hand, the demand is made of a servant, who refuses to deliver them, in consequence of the commands of his master, the conversion will be that of the latter; as where the agent of the state prison refused, by the direction and command of one of the inspectors, to deliver the goods to the plaintiff, the conversion was held to be that of the inspector, and trover might be maintained against him.(c) (4.) Of the refusal to deliver the goods on demand. 3536. To be evidence of a conversion, the refusal must be absolute and unqualified; when the refusal to deliver property is absolute, unconditional and unqualified, it is equivalent to a conversion ; (d) but the qualifications and conditions must be reasonable, and founded in fact, or, at least, appear so at the time; for example, when a party bonâ fide claims a lien, or refuses to deliver them, not being satisfied, for just reasons, that the claimant is the owner, or has authority to (a) Logan v. Houlditch, 1 Esp. 22. (d) Dent v. Chiles, 5 Stew. & Port. 383; 5 B. & A. 847. No. 3537. Book 4, tit. 9, chap. 2, sec. 2, § 3, art. 3. No. 3538. receive them, (a) or the bailor asks time, for a just cause, (b) or the refusal may be considered only as the result of a reasonable hesitation, in a doubtful matter; (c) in these cases it will, in general, be left to the jury to decide whether the qualifications or conditions of the refusal were reasonable.(d) But a qualified refusal to deliver goods on the ground that the defendant had received a notice of a demand from a third party, is evidence of a conversion; for the setting up the jus tertii, or keeping the goods to maintain the title of a third party, is to deprive the owner of his goods and denying his title, and, therefore, it is a conversion. (e) 3537. The refusal is generally express, but it may be implied. When it is the duty of the defendant to return the chattel to the rightful owner, as where he borrowed a horse from the plaintiff, and agreed to return him, a request in writing left at his house in the presence of one of his family, to return the horse, will be considered as a sufficient demand, and his neglect to return him, within a reasonable time thereafter, will be evidence of a refusal and of a conversion. (f) The refusal should be made by a principal or by his authority; a refusal by an agent, is not evidence of a conversion by the principal, unless the agent had a special authority to refuse, (g) or unless, from circumstances, it can be presumed such authority had been given, or the matter was within the scope of the agent's authority.(h) 3538. A refusal may be justified or excused, and then it will not be a conversion; as where the property has (a) Mills v. Ball, 2 B. & P. 464; 5 Moore, 259; 2 M & W. 78. (b) Dowd v. Wadsworth, 2 Dev. 130. (c) Robinson v. Burleigh, 5 N. Hamp. 225. (d) Vaughan v. Watt, 6 M. & W. 492; Dent v. Chiles, 5 Stew. & Port. 383. (e) Atkinson v. Marshall, Exch. 21 L. J. R. 117; Gaunce v. Spanton, 7 M. & G. 903. (f) Gow, 69; 7 C. & P. 339. (g) Holt, 383. (h) 2 Salk. 441; Catteral v. Kenyon, 2 G. & D. 545; 2 Saund. 47, g. No. 3539. Book 4, tit. 9, chap. 2, sec. 2, § 3, art. 3. No 3539. been attached by the creditor of the owner, before the demand, a refusal to deliver it would be justified ;(a) but such an attachment, after a refusal, and a subsequent sale to pay the debt of the plaintiff, would be no justification, although it might be a mitigation of the damages, because, at the time of the refusal, the conversion was complete. (b) The refusal may be excused where the party had it not in his power to deliver the property, as where a party said he would not deliver up the deed, because it was in the hands of his attorney, who had a lien upon it.(c) 3539. As to its effects, the refusal is presumptive evidence of a conversion, which may be rebutted ; (d) it may be shown that the goods were not in the power of the party, (e) or that they were delivered to the plaintiff or his agent before the demand and refusal; or that the defendant has a lien unsatisfied; or that the person who demanded, did not show any authority from the plaintiff when required; or, as in the case of a common carrier, that the goods were lost, and therefore there was no conversion; (f) or that the goods had been attached by lawful process, as the property of the plaintiff in the hands of the defendant. When one ground for the refusal is given, the defendant can take advantage of no other; as, where the defendant has a lien, which would be a sufficient ground, he refuses upon other grounds, he waives the lien, and, on the failure of the other grounds, he cannot resort to it.(g) (a) 2 C. M. & R. 495. (b) Irish v. Cloyer, 8 Verm. 33, 110. (c) 1 Camp. 439. (d) Thompson v. Rose, 16 Conn. 71; Lockwood v. Bull, 1 Cowen, 322; 2 Saund. 47, e. (e) 1 Camp. 439. (ƒ) 2 Saund. 47, f. (g) 1 Camp. 410, note; Clarke v. Chamberlain, 2 M. & W. 78; Wilson v. Anderton, 1 B. & Ad. 450; West v. Tupper, 1 Bailey, 193. No. 3540. Book 4, tit. 9, chap. 2, sec. 2, § 4, art. 1. § 4. Of the pleadings in trover. Art. 1.-Of the declaration. No. 3542. 3540. It will be proper to inquire, 1, what are the requisites of a declaration in trover; 2, what defects in it are cured by a verdict in favor of the plaintiff. 1. Of the requisites of a declaration in trover. 3541. These are, 1, the statement of the cause of action; 2, the proper averments; 3, the claim for damages. 3542.-1. The declaration should state that the plaintiff was lawfully possessed of certain goods and chattels, which he should describe as particularly as possible, avoiding repetition and unnecessary description of details, as of his own property, of a certain value, which should be mentioned, and that being so possessed, he, on a certain day, which should be specified, casually lost the said goods and chattels out of his possession; and that, afterward, on the day and year aforesaid, at the county aforesaid, they came to the possession of the defendant by finding. The certainty in the description of the thing lost must be such as to identify it, but certainty to a common intent is all that is required;(a) where the property was described as "a black mare, of the value of one hundred dollars ;"(b) or, that "the plaintiff being owner, and in possession, of a pair of oxen of the value of one hundred dollars, lost the same, and that the same were found by the defendant; (c) or "old iron," (d) or "fifty pieces or ends of deal boards; (e) in (a) Vanhauken v. Wickam, 2 South. 509; Taylor v. Morgan, 3 Watts, 333. (b) Hedley v. Fullen, 1 Black f. 51. (c) Vanhauken v. Wickam, 2 South, 509. (d) Talbot v. Spears, Willes, 70. (e) Knight v. Baker, 11 Mod. 66; Haslegrave v. Thompson, Str. 810. The practice of annexing a schedule of the things lost to the declaration, has been disapproved of, as being improper. Kinder v. Shaw, 2 Mass. 398; Rider v. Robbins, 13 Mass. 284. |