First, where the old certificate has been lost or mislaid2; 2dly, where the certificate is wilfully detained by the master; Sdly, where, after a transfer of part of the property in the same port, the owners of the part not transferred desire a new register; 4thly, where the ship is altered in form or burthen; and 5thly, upon any transfer of property to another port. The statute of King William also required a new register in case of a change of the ship's name, but this change is now altogether prohibited'. The compiler trusts, that an aoxious desire on his part to contribute to the better understanding these important statutes, (which, as was admirably observed by a learned judges, are the bulwarks of the commerce of the country, and the great tower of our naval strength,) will afford an apology for the space occupied by the preceding remarks, in a work which professes to be an abridgment. He now returns to the more immediate subject of this section, viz. the evidence necessary to maintain an action of trover. To determine what evidence will be sufficient to prove a conversion in the defendant, it must be known in what manner the goods came to his hands; for if they came to his hands by delivery, finding, or bailment, an actual demand and refusal ought to be proved; but proof of a tortious taking will supersede the necessity of proving a demand and refusal; for where the taking is unlawful, it is of itself a conversion; so likewise, if an actual conversion be proved, it is not necessary to prove a demand and refusal. A mere non-delivery of goods, which have been placed in the defendant's hands for a specific purpose, will not amount to a tortious conversion. Hence, where goods have been delivered to a manufacturer, in order that he may do something to the goods in the course of his business, and then return them; if the manufacturer, upon being applied to for the goods, merely makes excuses for not having returned them, and does not absolutely refuse to deliver them, trover cannot be maintained; the proper remedy is an action of assumpsit for non-performance of the con A trader on the eve of bankruptcy made a collusive sale of his goods to A. It was holden, that the assignees could not maintain trover for the goods against A., without proving a demand and refusal. But the sale of a ship, which was afterwards lost at sea, made by the defendant, who claimed under a defective conveyance from a trader before his bankruptcy, has been holden to be a sufficient conversion so as to enable the assignees to maintain trover, without proving a demand and refusal. N. The defendant sold the ship by public auction, and afterwards assigned it to the vendees, who sent her to sea. A demand and refusal is only evidence to induce a jury to presume a conversion"; and, therefore, if the jury find a special verdict, that there was a demand and refusal, the court cannot adjudge it to be a conversion. A demand and refusal is not evidence of a conversion", where it is apparent that the defendant has not been guilty of a conversion; as in the case of the defendant having cut down the trees of the plaintiff, and left them lying in the plaintiff's ground; for in such case it is clear that there has not been any conversion, if they continue there as before. If A. into whose possession goods happen to come, being ignorant that B. is the real owner, refuses to deliver them to B., until he proves that he is the real owner; such qualified refusal is not evidence of a conversion°. In order to make a demand and refusal sufficient evidence of a conversion, the party, when he refuses, must have it in his power to deliver up or to detain the article demanded. Hence, where in trover for a deed, the evidence was, that when the deed was demanded from the defendant, he said he would not deliver it up, but that it was then in the hands of his attorney, who had a lien upon it. This was holden in sufficient. In trover against a carrier, a refusal to deliver is not evidence of a conversion, if it appears clearly that the goods have been lost through negligence; but if that does not appear, or if the carrier had the goods in his custody when he refused to deliver them, it is good evidence of a conver sion (30). But he may give in evidence the detaining of the goods for his hire. So he may give in evidence, that the goods were stolen; for then he is not guilty of a conversion, though he will be liable in an action on the case to make compensation for the loss of the goods. If A. sends goods by B.", a common carrier, to be delivered to C., proof that B. asserted he had delivered the goods to C., whereas in truth C. had never received them, is not sufficient evidence of conversion to support trover against B. So in trover for a horse in an inn-keeper's possession, refusal is not a conversion, or evidence of a conversion, unless the plaintiff tender a sum sufficient for the keep of the horse, and the jury is to judge of the sufficiency of the tender (31). But if A. put a horse to pasture with B., and agree to pay him a certain sum per week as long as he remains at pasture, and afterwards sell him to C., who brings trover against B., B. cannot detain the borse against C. the purchaser, until he be paid, but must have recourse to his action against A. r.Salk. 655. Dewell v. Moxon, i Taunt. 391. S. P. s Skinner v. Upshaw, 2 Ld. Raym. 752. The case of the Exeter carrier, cited by Holt C. J. in Yorke v. Grenaugh, Ld. Raym. 867. t George v. Wyburn, 1 Rol. Abr. 6. u Attersol v. Briant, 1 Camp. N. P. (30) If a carrier says he has the goods in his warehouse, and refuses to deliver them, that will be evidence of a conversion, and trover may be maintained, but not for a bare non-delivery, without any such refusal." Per Lord Ellenborough C. J. in Severin v. Keppell, 4 Esp. N. P. C. 157. (31) "If a man brings his horse to an inn, and leaves him there in the stable without any special agreement as to what he is to pay, the innkeeper is not bound to deliver the horse until the owner has defrayed his charge for the horse; but he may justify the detainer of the horse for his food and keeping; and after the horse has eat as much as he is worth, the innkeeper, upon a reasonable appraisement, may sell him, and it is a good sale in law. But if there be a special agreement, that the owner of the horse shall pay a certain sum for the keep, in that case, although the horse eat out double his price, the innkeeper cannot sell him." Per Popham C. J. Yelv. 67. But see Jones v. Pearle, Str. 556, where it was holden, that an innkeeper cannot sell the horse of his guest, except in the city of London, 1.50T Possession ought to be proved in the defendant himself? :: for delivery to a servant is not sufficient, if the goods do not come to the hands of the defendant, unless the servantbe employed by his master to receive goods for him, and, the goods are delivered in the way of his trade; as if a pawn be delivered to a pawnbroker's servant. Of staying the Proceedings-Costs-Judgment. Formerly, if the defendant was desirous of staying the proceedings against him, by bringing the subject matter of the action into court, and undertaking to pay the costs incurred, the court refused to listen to the application, unless the action was brought for money, observing, that they had not any warehouse for the purpose. But of late years it has been usual to grant applications of this kind, when a proper case has been brought before the court (32). But not where it appears that the goods are altered and of less value than they were when taken (33). Costs. The action of trover not being within the stat. 22 & 23 Car. 2. c. 9. the recovery of damages to any amount will entitle the plaintiff to costs by virtue of the stat. of Glou cester. The stat. 8 & 9 W. 3. c. 11. s. 1.8 which gives costs to z Bull. N. P. 44., a Jones v. Hart, Salk. 441/ b Salk. 597. Bowington v. Parry, Str. d Per Ld. Kenyon C. J. 7 T. R. 54. Everard v. Lathbury, Bull. N. P. 49. e Royden v. Batty, Barnes, 284. Fisher v. Priuce, 3 Burr. 1363. f Per cur. in Ven v. Phillips, Salk. 208. g Marriner v. Barret, P. 1 G. 2. cited in Ingle v. Wordsworth, 3 Burr. 1285, (32) See Pickering v. Truste, 7 T. R. 53. where this doctrine was extended to trespass for taking goods. (33) Where the goods are ponderous, the court will grant a rule to shew cause, why, on the delivery of the goods to the plaintiff, and on payment of costs, the proceedings should not be stayed. Cooke v. Holgate, C. B. Barnes, 281. ed. 4to. Watts v. Phipps, B. R. E. 7 G. 3. Bull. N. P. 49. persons who are improperly made defendants in actions or plaints of trespass, assault, false imprisonment, or ejectio firmæ, does not extend to actions of trover. Judgment. The judgment in this action is for the recovery of da mages only, and in this respect it differs from the judg ment in the analogous action of detinue, which is for the recovery of the goods in question, or the value thereof, if the plaintiff cannot have the goods. h Knight v. Bourne, Cro. Eliz. 116. |