his own use. If he has exercised a dominion over it in exclusion, or in defiance of, or inconsistent with, the owner's right, that in law is a conversion, whether it be for his own or another person's use." In this case one carcass and two saddle of deer, belonging to the plaintiff, were wrongfully taken by the defendant, who skinned them and cut them into steaks and roasts, which he gave away; he used none of the meat himself, nor did he sell any of it. The Court held that the defendant was liable in conversion.

7. Distinction between trespass and trover.-As already pointed out these actions differ in the damages sought to be recovered. They differ also in this respect that, in trespass, the taking must be wrongful, while in trover, it is immaterial whether the original taking was wrongful or rightful, if there is a wrongful detention; that is, if there is a wrongful taking of the goods by the defendant, trespass and trover are concurrent remedies; if the taking is rightful, but there is a wrongful withholding, trover alone will lie, trespass de bonis cannot be maintained.17

There is a further distinction between these actions, in cases of wrongful takings. Trespass involves merely a wrongful taking or removal of the property, its essential feature is an interruption of the possession of the plaintiff. To constitute a conversion, however, there must be something more than a mere interruption of possession,—some repudiation of the plaintiff's rights to the property,

17 Cases in previous notes.

or usurpation of dominion or control over it, or some act done having the effect of changing the form or quality of the thing.18

For example, A, a land-owner, made a contract with B, whereby B was to build a house on A's land, B having, of course, a license to enter on A's land and place materials thereon. While B was building the house, A requested him to remove some of the building material, stored on the land, to another part thereof, and, on B's refusal, A removed the material. In an action for conversion it was held that B could not recover, even though he had a right to have the material remain where he had placed it. The court said, "The evidence negatived a conversion of the property by the defendants, and showed that they claimed no title to it, assumed no dominion over it, and did nothing in derogation of the plaintiff's title to it. If the plaintiff had the right to occupy the land which he claimed, the act of the defendants was wrongful, and they would be liable to the plaintiff for damages for breach of contract, or for trespass, but not for the value of property converted to their own use." 19

* * *

Again, A embarks on B's ferry with two horses and so misbehaves that B requests him to leave the ferry; on A's refusal B takes the horses from A and puts them on the slip, from which they are driven to the highway. They are subsequently cared for

18 Woodside v. Adams, 11 Vroom 417 (N. J.); Montgomery Water Power Co. v. Chapman & Co., 126 Fed. 68, 72. Opinion of Brett, J., in Hollins v. Fowler, L. R. 7 H. L. 757 (Eng.).

19 Shea v. Milford, 145 Mass. 525. Compare Bruch v. Carter, 3 Vroom 554 (N. J.).

by X, who sells them at auction to pay the expenses of their keep. B is not liable to A in conversion, whether or not A's misconduct justified B in removing the horses; though it is plain if B were not justified in removing the horses, he would be liable in trespass.20

20 Fouldes v. Willoughby, 8 M. & W. 540 (Eng.), LEADING ILLUSTRATIVE CASES. Compare Wellington v. Wentworth, 8 Met. 548 (Mass.).

8.

CHAPTER II.

NATURE OF CONVERSION.

Nature of act.-To constitute a conversion the act must be such as to indicate an assertion of ownership or title, or of a right of control or dominion over the property, adversely to the owner; for example, a sale 21 or letting 22 of the goods, or a destruction 23 of them, are of themselves acts of conversion; so also if the defendant wrongfully refuses to deliver the goods to the plaintiff." These are unequivocal acts of ownership; such conduct accordingly constitutes acts of conversion. They are, however, only instances. Conversion may be proved by evidence. of any act which is an act of dominion or control, implying ownership, though falling short of the acts stated. For example, the plaintiff delivered some ashes to the store of one W, and applied to the defendant, collector of the port, for a clearance; the defendant refused a clearance, and unjustifiably stationed an armed guard over W's store, telling the plaintiff that he would not be allowed to remove the goods until he had given a bond in double the value, conditioned that the plaintiff should transport them to a designated port. The court said: "In the pres

21 Consolidated Co. v. Curtis, 1892, 1 Q. B. 495 (Eng.).

22 Gilmore v. Newton, 9 Allen 171 (Mass.).

23 McPheters v. Page, 83 Me. 234, 22 Atl. 101.

24 Smith v. Durham, 127 N. C. 417, 37 S. E. 473.

"One in lawful pos

session of another's property after demand and refusal is in no better position than if his original possession had been wrongful.''

ent case there were the highest and most unequivocal acts of dominion and control over the property, not only in claiming jurisdiction over it, but in placing armed men near it, to prevent its removal. This fact is, of itself, a conversion." 25

Again, A hired a horse from B, to drive to a designated place. He intentionally drove the horse beyond that place to another. This constitutes a conversion. "Such use of the property is so substantial an invasion of the owner's rights, and so inconsistent with the idea of an existing bailment, that the bailee cannot reasonably object to the bailor's treating the bailment as terminated thereby or to his proceeding against the bailee for a conversion." 26

And the same result will follow if the hirer wilfully drives a horse so immoderately or violently as to cause its injury or death.27

25 Bristol v. Burt, 7 Johns. 254 (N. Y.). Compare England v. Cowley, L. R. 8 Exch. 126 (Eng.).

26 Woodman v. Hubbard, 25 N. H. 67; Homer v. Thwing, 3 Pick. 492 (Mass.); Freeman v. Boland, 14 R. I. 39. Compare Doolittle & Sherman v. Shaw, 92 Ia. 348, 60 N. W. 621. There is a conflict of authorities upon this question whether departure from the contract, of itself, creates liability in conversion. Some of the cases hold that a material departure, of itself, terminates the bailment and renders the bailee liable for the value, whether or not the departure caused damage. Other courts make the liability turn upon the question whether loss was caused by the departure. See Carney v. Rease, 60 W. Va. 676, 55 So. E. 729, holding that liability turns upon the question of loss, and citing authorities on both sides. See also 3 Am. & Eng. Ency. 12 (2d ed.), p. 752; also Harvey v. Epes, 12 Grat. 153 (Va.), for discussion.

In Spooner v. Manchester, 133 Mass. 270, in which the defendant inadvertently, and by mistake, took the wrong road, thereby materially increasing the distance of the journey for which he had hired the plaintiff's horse, the court held that there was no conversion, on the ground that the defendant's act indicated no intention to assume any control or dominion over the horse against the rights of the owner.

27 Wentworth v. McDuffie, 48 N. H. 402; Carney v. Rease, 60 W. Va. 676, 55 S. E. 729.