difpofition and by a tortious taking, and may be implied from a demand and refufal. When a perfon comes lawfully by the poffeffion of the goods of another, the actual ufing and improving of them as his own is a converfion. If a man rides a horse that he has lawfully diftrained, this is a converfion. So it is if he wears wearing apparel a But if any da c If a that he found, or that was delivered to be kept. mage happen to them by his neglect, it is no converfion. perfon finds goods and lofes them again, or they are taken fron him, he is not guilty of a converfion, because he does not difpofe of them as his own. If the corn of one man be carried to mill by another, and the owner forbids the miller to grind it, and he does, this is a converfion. If one man after drawing part of the wine of another out of a veffel, put as much water into the veffel, as he drew out wine, this is a converfion of all the wine, because the whole is thereby damaged, if not spoiled. If goods, in order to prevent the sinking of a ship, are thrown by the mafter of the fhip into the fea, this is not a conversion; because so far from difpofing of the goods as if they were his own, the mafter only does what is neceffary for the prefervation of the fhip, and the lives on board. 8 A tortious, or unlawful taking of goods, is a converfion. So is every unlawful intermeddling, or affuming by one perfon to difpofe of the goods of another, as if they were his own. But as there are inftances in which it is impracticable to prove a tortious taking, or an actual converfion, the law has furnished a mode of proof by demand and refufal. If therefore I demand my goods of a perfon who has the poffeffion of them, and he refuses to deliver them to me, this is confidered as prefumptive evidence of a conversion; and is fufficient, unless the defendant can avoid it by other circumstances. b In refpect of the form of the declaration, it may be remarked, that in trover, the converfion is the gift of the action, and the manner in which the goods came into the defendant's hands, is but inducement; the plaintiff may therefore declare generally, that they came into his Lands, or specially by finding (even tho in P a Cro. Jac. 148. fact d Clayt. $7. 2 Efpin. 350. i Bull, N. P. 33. fact the defendant came to them by delivery,) or that the defendant fraudulently obtained them, as by winning them at cards from the plaintiff's wife, and this being inducement, need not be proved; but it is fufficient to prove property in the plaintiff, and poffeffion and converfion by the defendant. a The declaration fhould defcribe the goods with fufficient certainty, fo that they may be known, and the defendant be able to make his defence against the challenge, and be pleadable in bar to another action for the fame thing. A declaration for one parcel of pack-cloth, without fetting out the exact quantity, and for fifty' pieces of timber, has been held to be good. The declaration muft ftate the time, but the fame latitude is given in point of proof, as in trefpafs. It is ufual to mention the place which is not neceffary by our law, tho it is in England, but the action is tranfitory, and may be laid in one place and proved in another; and the price and value of the goods, tho not abfolutely required by the common law. An administrator may declare that he was poffefled of divers goods and chattles, as of his own proper goods, and tho they were the teftator's in fact, yet the declaration is good. As to the evidence to be produced by the plaintiff, it is to be observed, that as this action equally lies where the taking has been tortious, or where the defendant has lawfully obtained poffeffion of the plaintiff's goods, and afterwards converted them, what fhalb be evidence of a converfion in thefe two cafes feems to be different. For when an actual taking of the goods in question is given in evidence, that is fufficient without fhewing a demand and refufal; for it is an actual converfion: but when the defendant comes to the goods by finding, delivery, or bailment; for example, there an actual demand and refufal must be fhewn, to establish a converfion, unless an actual converfion can be proved, in which cafe it is not neceffary to prove a demand. For a demand and refusal in fuch cafe is fufficient evidence of a converfion. But it is not of itfelf a converfion, and a refufal on demand, may be juftifiable, and lawful under particular circumftances. As if a perfon finds my goods and I demand them, and he anfwers, that he knows not whether I am the true owner, and therefore refufes to deliver them; this is not to be deemed a converfion to his own ufe, as he keeps them for the owner. So in all the cafes before mentioned, where a perfon has a lien upon the goods, he may lawfully refufe to deliver them when demanded, till his debt be fatisfied. A demand and refufal is only prefumptive evidence of a converfion, for if it appears that there has been no conversion in fact, this action will not lie. As in trover against a carrier for goods, which appear either to have been loft, or stolen; in fuch cafe denial is no evidence to fupport the converfion neceflary to this action, fince the contrary is proved, tho the carrier would be liable under the cuftom of the realm, but if this did not appear, or the carrier had the goods in his cuftody when demanded, this had been good evidence of a converfion. So, if the defendant had cut down the plaintiff's trees, and left them on the ground, this could not amount to a conversion, fince it is plain they were left in the plaintiff's poffeffion. A demand of fatisfaction for goods taken, and a refufal, has been adjudged fufficient evidence of a converfion, tho there was no demand of the goods themselves. CHAPTER TENTH, OF TRESPASS ON THE CASE. TRESPASS on the Cafe, is an action brought for the re covery of damages, for acts unaccompanied with force, and which in their confequences only are injurious. For tho an act may be in itfelf lawful, yet if in its effects or confequences it is productive of any injury to another, it fubjects the party to this action. As where the defendant put up a spout in his own ground, this was an act lawful in itself, but when it produced an injury to the plaintiff by conveying the water into his yard, trefpafs on the cafe was adjudged to lie for fuch confequential injury. So shooting of a gun which in itself is an indifferent and lawful act, yet when by it, the plaintiff's decoy was injured, this action was held to lie. It is not neceffàry to maintain this action, that the injury which the Efpin Dig. 364. bi Strange, 334- c2 Espin. Dig. 365, the plaintiff has fuftained, fhould arife from fome act of the defendant, for the action equally lies where the injury has been caufed by the neglect, or culpable omiffion of any duty it was incumbent on the defendant to perform. As if one retains an attorney to conduct his fuit, and in confequence of any neglect, the party fuffers any lofs, this action lies against the attorney for fuch neglect. So if a person suffers the ditch, which borders his neighbour's land, to become fo foul that the water will not run, whereby his neighbour's land is overflowed, this action lies for fuch culpable omiffion of which he was bound by law to do. But to charge a person in this action for any neglect the law must have impofed a duty upon him, fo as to make the neglect culpable. As if a perfon finds any thing, he is under no obligation by law to keep it fafely, and if it be spoiled while in his poffeffion, no action lies, for there was no duty by law on him to take any degree of care. It is no excufe for the defendant, that the injury was involuntary on his part. For if any damage is caufed to another, for the want of due care and attention, or by the folly of the defendant, this action lies. As if a perfon brings an unruly horse to break in a place of public refort, tho he might not intend to do an injury to any person, yet if any one is kicked, or otherwise hurt by the horfe; he fhall have this action, for it was folly and want of care to bring him to fuch a place, for fuch a purpose. So neither is it any excufe, that by proper attention the perfon who receives the injury might have avoided it. As if a perfon lays logs of wood acrofs the highway, through which a perfon by proper care might ride with fafety, yet if the horse stumbles over them and the person is thrown, he may recover in this action for the injury. But if the injury which the perfon has fuftained, arifes from his own neglect and folly, and might have been avoided, no action lies. As where the plaintiff declared he was employed by the defend. ant, to carry a load of timber to a certain place, and to lay it down where the defendant appointed; that he carried it and the defendant having appointed no place where it was to have been laid down, a Finch's Law, 188. Cro. Eliz. 219. c 2 Lev. 172. d Cro, Jac. 446. • 2 Lev. 196. 1 down, the plaintiff's horfes were detained in the cold, by which fome of them died, and the reft were spoiled; after a verdict for the plaintiff, judgment was arrested-for it was the plaintiff's fault that he did not take out his horfes and lead them about, of he might have unloaded the timber in any proper place, and returned. Wherever a right is of a public nature, that is in common to all the people, the mere depriving the public of that, will not fubject the party to an action, for fo would actions be without end; and the remedy must be by a public profecution. a But if any individual fuffers a particular injury in confequence of being deprived of fuch right, he may have his action on the cafe. So where the matter is of a public nature, but confined to a particular body, this action will not lie in favour of each individual. • Every perfon employing another in any office, or employment, is answerable for his mifconduct or neglect, or for any injury which he may occafion. Therefore a mafter fhall answer for the misconduct of his fervant. Such are the general principles refpecting this action. I have already had occasion to treat of injuries of this description, as they refpect the perfon, and things real. It only remains for me to confider this action as it refpects things perfonal. For this purpofe, I fhall confider the injuries that arife from the misconduct, or neglect of public officers, as 1. Sheriffs, and conftables. 2. Attornies. 3. Juftices of the Peace. And the injuries that arife from the misconduct, or negligence of private perfons. 4. Breach of Truft. And 5. Deceits. 1. We are to confider the injuries arifing from the misconduct and negligence of fheriffs and conftables. In all cafes of neglect, or default of performing their duty by deputy sheriffs and goal-keepers, action will lie either against them, or against the fheriff-Conftables are refponfible for themfelves in the fame manner as sheriffs. Sheriffs are liable in cafes of, 1. Efcape. 2. Refcue. and 3. Falie Returns. In 1 Salk. 12. b5 Co. 72.b 1Ld. Raym. 737. & Sak. 441. 2 Stra. 1004. |