OF CHAP. VI. will reiterate it, and state the circumstances and grounds upon ANTICIPATION which he made the assertion (and which repetition will not be HOSTILITIES. Considered as a privileged communication, whatever might have been his first statement); (f) and if he have a due regard for his own character he will not hesitate to reiterate it in writing; and if he should refuse to do either, he may then be justly treated by A. and his friends as a contemptible slanderer, whose assertion is not worthy of credit. And if he should decline to comply, then all the real friends of A. ought to disbelieve the report, and consider that A. has done every thing in his power to clear up his character; and A. will be justified in sending circulars to all his friends stating what has passed, but taking care to confine himself to the above narrative without using any libellous expression of the slanderer. (g) Requiring explanation in other cases. So in many of the cases adverted to in the last chapter, as where a wife, or child, or apprentice is retained, detained or harboured by a third party, his intention to commit any injury may be uncertain, and we have seen that it is necessary to serve a notice upon him and make a request of restoration before an action can be safely commenced; and although the measure may have already been adopted, yet, for the sake of securing evidence or rendering the party more deliberately guilty of the injury and enhance the damages, it may be expedient to repeat the measure in the presence of witnesses. (h) 3. Demand of 3. We have already considered the necessity or expediency restoration of a wife, child, apof giving a general notice or caution against harbouring an prentice or ser- apprentice or servant, and for appointing a time for fetching the same home. (i) We will now suppose it to be certain that a party has already wilfully abducted or harboured a wife, vant. Suggested form of letter in case of ambiguous slander. (f) Smith v. Mathews, 2 Mood. & M. 151. (g) The following may be the form of such letter, which may be written by the Sir, party slandered, or by his attorney or friend, but of course it must be adapted to the circumstances. Dated, &c. I am informed that you have used expressions materially prejudicial to my cha racter (or the character of Mr. A.) as that "he has so misconducted himself as to render it unfit for any respectable person to associate with him,” alluding to myself, or some words to that effect. My own feelings and those of my friends compel me to ascertain whether you made any such representation, or any and what assertion and in what precise terms; and if you did, that I should adopt legal measures to vindicate my character by disproving the truth of such calumny.' Supposing that you bave used any such expressions, or any others injurious to my reputation, I will not anticipate that you would act so unmanly as to deny the assertion or decline answering this communication, or that you will be so regardless of reputation as to deny me the means of establishing my innocence; and I therefore request you to repeat in writing the exact words made use of, so as to enable me to proceed by action for the slander, and in which the propriety or impropriety of your assertion may be fairly tried. I am, Sir, your's, &c. (h) Ante, 449, 450, 510. (i) Ante, 449, 450, and notes. CHAP. VI. ANTICIPATION OF child, apprentice or servant, but still, at least in the latter case, it will be necessary to be prepared to prove a formal demand of restoration before an action can be sustained, and that it has HOSTILITIES. been so made as to constitute the party a wilful wrongdoer, (k) unless the plaintiff can prove an original illegal enticing away; (1) or as there may not be any legal obligation on the harbourer to incur the trouble or expense of sending home the relative, the prudent course will be in person or by agent to demand the return at the house of the harbourer, and at a time when he may reasonably be expected to have received the notice before suggested and to be ready to comply with its terms. (m) Accompanying the verbal demand, and in order to prevent any doubt or ambiguity as to what may have passed, it may be as well to produce and leave at the residence of the wrong-doer, and where the relative is harboured, a written demand to the effect stated in the note, (m) and wait a reasonable time until the demand has been positively refused or complied with; and if after such demand it be certain that the relative is in the house, and the outer door be open and entrance can be made without committing a breach of the peace, search may be made and the relative carried away. (n) But if any violent resistance should be apprehended, it will be better to proceed by habeas corpus or by the chief justice's warrant, excepting in the case of an apprentice, for whom that writ can only be obtained at his own instance and not on the application of the master, at least where he has been impressed. (0) 4. If a party have illegally taken away (p) or wrongfully 4. Demand of (k) Fawcett v. Beaver, 2 Lev. 63; Winsmore v. Greenbank, Willes, 582; Fores v. Wilson, 1 Peake, C. N. P. 55; Eades v. Vandeput, 5 East, 39. "servant,' " Sir,-Without prejudice to my immediate right to sue you for having enticed away Demand of a and already harboured Mrs. E. B., my wife, [or my "child," or "apprentice," or wife, child, apor my journeyman employed by me on work still unfinished,"] I do prentice or serhereby demand and require you immediately to deliver her [or "him"] up to me, [or vant illegally "to Mr. G. H., the bearer,"] or if she is not now in your house, then that you will state harboured. to and inform me where she is to be found, and also that you do forthwith return her to me at, &c.; and I hereby give you notice, that if you shall refuse or neglect to comply with this notice and request, I shall forthwith commence an action against you for your harbouring and detaining from me my said wife, &c. and cause other proceedings to be instituted against you according to law. Dated this A. D. 1833. day of Your's, &c. A. B. (p) 2 Saund. 47, n. (o); Bishop v. Viscountess Montague, Cro. Eliz. 824; Summersett v. Jarvis, 6 Moore, 56. OF CHAP. VI. assumed the right to goods, (q) in a manner which in the very ANTICIPATION taking or mode of performance constituted a conversion, then HOSTILITIES. no further step is in general necessary, because the right to sustain an action of trover is in that case already complete.(q) But in other cases, where the original taking was lawful, and the detention only illegal, it is absolutely necessary; (r) and it is in most cases advisable, in order to secure sufficient evidence of a tortious conversion on the trial, to give a formal notice of the owner's right to the property and possession, and to make a formal demand in writing of the delivery of such possession to the owner, and which should not be sent by the post, but actually delivered to the wrong-doer in person by the owner, or by a person named in the demand, and therein stated to have been authorized to demand and receive and carry away the goods, and this in the presence of a competent witness; and if it be doubtful whether the party has any lien, it will be proper to require a statement thereof, and to offer to pay it, upon the nature of the claim and the amount being communicated and ascertained to be just; and if there should be any doubt whether the claim of lien be sustainable, and the goods be perishable, or the possession be urgently required, then it may be safer to pay the amount under protest; for afterwards, if it be ascertained that there was no lien, or not so much as claimed, the money not justly due would not be considered as voluntarily paid, but might be recovered back. (s) The refusal to comply with such a demand would in general afford sufficient evidence of a conversion. The form of the demand may be as in the note. (t) It is a common doctrine, that Form of demand to precede a conversion. (q) Moss v. Charnock, 2 East, 405; M'Combie v. Davies, 6 East, 540; Lovell v. Martin, 4 Taunt. 799; Granger v. George, 5 Bar. & Cres. 149. (t) Sir, [or Gentlemen,] (r) 2 Saund. 47, n. (e); 1 Chit. Pl. 179, 180. (s) Stone v. Lingwood, 1 Stra. 651; Green v. Farmer, 4 Burr. 2218. I hereby give you notice, that the goods and chattels being, &c. [here describe the articles fully and properly,t] are my property, and not the property of or of any other person whatever, and I hereby offer to produce to you all documents in my possession or power tending to establish that the said goods and chattels are my property as aforesaid. And I hereby demand and require you to deliver the said goods and chattels to E. F. the bearer, who is fully authorized by me to demand and receive the same from you. And if you have any lawful lien or claim upon the said goods and chattels, I hereby require you to state the same, and I give you notice that I am ready and willing to pay the same. And in case it should occasion you any If a sheriff or his officers, for taking a wrong party's goods under a fi. fa., the demand is frequently entitled in the cause, but it should not by any terms, even impliedly, recognize the supposed validity of the commission of bankruptcy, writ or proceeding. ↑ See Colegrave v. Dios Santos, 2 Bar. & Cres. 76, post 567, note (y). CHAP. VI. ANTICIPATION OF a demand and refusal are only presumptive evidence of a conversion, which may be rebutted, and therefore if it be at all uncertain whether the party upon whom the demand is made be HOSTILITIES. then in actual possession of the goods, or whether it is in his power at that time to deliver them, (u) or he is merely an agent and his refusal be ambiguous, it may be necessary to make full inquiry into the facts, and to extend the demand to the supposed principals, or otherwise vary the demand according to particular circumstances. (x) The goods should be fully specified or described, so as at least not to mislead, and therefore a demand of fixtures, or a refusal to deliver fixtures, will neither constitute a demand or a conversion of detached furniture or goods,(y) but demands of "payment or satisfaction" for goods converted have been holden a sufficient demand of the goods themselves. (2) And if two distinct demands be made, one verbally and the other in writing, the claimant may rely upon either. (a) It has been supposed that the mere leaving a written demand at the residence of a party is sufficient, (b) and this may be so, if it be followed by a general and absolute refusal to deliver up the goods. But 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 or warehouse, or elsewhere, to the claimant, it should seem that the party, after delivering the demand at the house, must afterwards see the party in possession, or attend at the place where the goods are, after a reasonable time for the party to give direction for the delivery of the goods, and then again verbally demand the delivery of the goods to him, and be ready to remove them, or must obtain an unqualified refusal to deliver them from some authorized person. (c) inconvenience immediately upon the receipt hereof to deliver up the said goods, then day of A. D. —. Your's, &c. (2) Thompson v. Shirley, 1 Esp. R. 31; (a) Smith v. Young, 1 Campb. 439. CHAP. VI. ANTICIPATION OF 5. Notice by reversioner of his interest in sheriff. 5. So although in general a sheriff, who seizes goods under a writ of fieri facias, is bound, at his peril, to take care HOSTILITIES. and ascertain whether the same are the property of the party against whom the writ was issued; yet in a late case it was held, that if a party has goods on hire for a term, and the goods seized by sheriff seize them under an execution against him, the reversioner, who so let the goods, cannot support any action against the sheriff for selling the entire and absolute property of such goods, unless he show that " he gave the sheriff notice that the goods were hired for a term only, and that they were the property of the reversioner, and that the sheriff' must only sell the limited or temporary interest;" and it appears to have been considered in the same case, that mere intimation to the sheriff's officer, that the goods were hired, would not be sufficient, and Bayley, J., said, "you should have informed the sheriff of the nature of your interest, and then he might have sold the hirer's interest only," and per Abbott, C. J., "it is very desirable that persons should give their notices correctly." (d) 6. Notices of in the house or upon the land of another, and request to have same restored, or to permit claimant to same. 6. When by any lawful means the personal property of the property being owner is in the house or upon the land of another, the latter, before he can legally enter to bring it away, must (except, perhaps, where the occupier has wrongfully placed or detained it there,) first give notice of the circumstances under which the goods are there, and civilly request the occupier to restore enter to remove them to him, or request permission to enter on purpose to remove them himself, and offer to pay any possible damage that would be occasioned by such entry; after which, in case of refusal, the owner might legally enter, or at least sustain an action of trover. (e) When by unavoidable accident trees are blown down, or fruit falls upon the land of another, or cattle enter by reason of the occupier's neglect to repair his fence, it should seem that such an entry would be legal, but it is expedient previously to give the suggested notice, at least in all cases where the occupier is not himself to blame; (e) for though the occupier may not have a right to the property which is on his premises under any such circumstances, yet it is but reason (d) Dean v. Whittaker, 1 Car. & P. 347, at Nisi Prius and afterwards in full Court, and see Tidd, 9 ed. 1003, sed quære. If the reversioner had not known of the execution, his neglect to give notice certainly then ought not to prejudice his remedy, for a sheriff seizes at his peril, Tidd, 9 ed. 1008. (e) See Anthony v. Hany, 8 Bing. 191, where circumstances of this nature were considered, and a plea beld bad because it did not show how the goods were on the plaintiff's premises so as to justify the entry; see further next chapter. |