such dealing was according to the ordinary course of business, has given rise to much difficulty and contrariety of opinion. On principle, and excepting possibly dealings with negotiable instruments, it would seem clear that if any exception were to be made to the common law rule of liability for acts of dominion, because done in due course of business, such exception should be made by the legislative branch of the government.24 If the defendant's act is, in other respects, sufficient to amount to a conversion, the fact that he has acted in the ordinary course of his business proves no more than that he acted in good faith, and this does not excuse him, on principle or authority.25 The current of authority, moreover, is in accordance with the principle just stated.

In Hollins v. Fowler,26 the House of Lords held that a broker, who had purchased on behalf of his principal some cotton from one who had no title, and had delivered the cotton to his principal, was liable in trover to the plaintiff, the owner, notwithstanding that the defendant had acted in accordance with the ordinary course of his business. Brett, J., however, dissented and strongly urged that the defendant should not be held liable.27

In like manner it is generally held that a sale by

24 See opinion of Blackburn, J., in Hollins v. Fowler, L. R. 7 H. L. 757 (Eng.).

25 §§ 13, 14, and cases cited.

26 L. R. 7 H. L. 757 (Eng.). Compare Consolidated Company v. Curtis and Son, 1892, 1 Q. B. 495 (Eng.); Williams v. Merle, 11 Wend. 80 (N. Y.). 27 Consolidated Company v. Curtis and Son, 1892, 1 Q. B. 495 (Eng.); Robinson v. Bird, 158 Mass. 357; Swim v. Wilson, 90 Cal. 126; Hudmon v. DuBose, 85 Ala. 446, 5 So. 162; Kimball v. Billings, 55 Me. 117.

an auctioneer of goods belonging to the plaintiff, though the auctioneer receives the goods from one whom he innocently, though erroneously, supposes to be the true owner, and sells in due course of business, is a conversion.

On the other hand, it is held that if a broker merely negotiates a sale, without intermeddling with the goods, there is no conversion; 28 so merely transporting the plaintiff's goods at the request of one wrongfully in possession of them does not render a carrier liable; 29 nor does the mere interference with the possession of the plaintiff's goods by an agent or bailee of one who has converted them; 30 nor is an auctioneer liable who negotiates a sale for one who wrongfully has taken the plaintiff's property, if the auctioneer does not receive or deliver the goods.31

In Greenway v. Fisher,32 it was held that a customs officer who merely shipped the goods, and made affidavit that he was the owner, according to a common practice, was not liable in conversion. All of these cases, however, are consistent with the general principle. In none of them is there any unequivocal act of dominion indicating a claim of ownership, or any necessary repudiation of the rights of the true owner; and the fact that the acts done were done

28 Lancaster Co. v. Fitzhugh, 6 H. & N. 502 (Eng.); Hollins v. Fowler, L. R. 7 H. L. 757 (Eng.).

29 Gurley v. Armstead, 148 Mass. 267, LEADING ILLUSTRATIVE CASES. 30 Loring v. Mulcahy, 3 Allen 575 (Mass.); Leonard v. Tidd, 3 Met. 6 (Mass.).

31 Compare Consolidated Company v. Curtis & Son, 1892, 1 Q. B. 495 (Eng.); Burbank v. Crooker, 7 Gray 158 (Mass.).

32 1 C. & P. 190 (Eng.). Compare Leuthold v. Fairchild, 35 Minn. 99.

in the ordinary course of business, indicates that there was no intent to convert, in fact.

25. Same subject Negotiable instruments.-In Spooner v. Holmes,33 the Supreme Court of Massachusetts held that a broker who received certain coupons on government bonds, payable to bearer, from one who had stolen them from the plaintiff, was not liable in conversion, though the defendant sold the coupons, received payment therefor, and paid over the proceeds to his principal, who had received. them from the thief; on the ground that such instruments, being negotiable, stand on a different footing than do ordinary chattels and that the fact that the defendant acted only as agent and in ordinary course of business negatived a conversion.34

35

In Kimball v. Billings, upon similar facts to those in Spooner v. Holmes, the Supreme Court of Maine held that the defendant was liable in conversion to the true owner. On principle the decision in Kimball v. Billings seems to be right. As stated by the Court in that case:36 "It is no defense to an action of trover that the defendant acted as the agent of another. If the principal is a wrongdoer his agent is a wrongdoer also."

It is perfectly clear that "a person is guilty of conversion who sells the property, of another without authority from the owner, notwithstanding he acts under the authority of one claiming to be an owner and is ignorant of such person's want of authority." It

33 102 Mass. 503.

34 See, however, Kimball v. Billings, 55 Me. 147.

35 55 Me. 147.

36 Kimball v. Billings, 55 Me. 147.

37

is also true that the mercantile law as to negotiability enables a purchaser to acquire a title to a negotiable instrument, although under the same circumstances the purchaser of an ordinary chattel would not acquire title by the rules of the common law, that is, there may be no conversion of a negotiable instrument because title was acquired, and under the same circumstances there may be a conversion of an ordinary chattel because no title was acquired. If, however, no title to the negotiable instrument is acquired by the purchase, according to the law of trover, any unauthorized dominion over the instrument exercised against the rights of the true owner is a conversion of it and should render the person so exercising ownership liable for the value of it to the true owner.38

The truth is that one who exercises acts of dominion or ownership over chattels does so at his peril, and it is at least questionable whether the hardship of this rule is any greater in cases of dealings with negotiable instruments than it is with respect to dealings with other articles of property.39

BIBLIOGRAPHY.

Bigelow on Torts (8th ed.); Cooley, Law of Torts (students' ed.); Burdick, Law of Torts; Jaggard, Law of Torts; Underhill, Law of Torts (9th ed.); Simpson, Cases on Torts; Ames, Cases on Torts, vol. I; Smith, Cases on Torts, vol. II; Burdick, Cases on Torts.

37 For example, innocent purchase from a thief of instrument payable to bearer. See Revised Laws of Mass., chap. 73, § 33, and provisions in other states adopting the Negotiable Instruments Law.

38 See § 10. See also §§ 13 and 14.

39 See opinion of Brett, J., in Hollins v. Fowler, L. R. 7 H. L. 757.