C, a wrongdoer. A has immediate right of possession, which is also good as against C.50

13. Intent-Bad faith.-There is much confusing language in the books upon the question of the necessity of proof of intent in this action. "Liability for converting the goods of another to one's own use," says Dr. Bigelow,51 "does not depend upon the intent of the party exercising the act of dominion." On the other hand, Parke, B., in Simmons v. Lillystone 52 says, "In order to constitute a conversion there must be an intention of the defendant to take to himself the property in the goods, or to deprive the plaintiff of it." Again in Spooner v. Holmes,53 Mr. Justice Gray says that an action of trover "cannot be maintained without proof that the defendant either did some positive wrongful act with the intention to appropriate the property to himself or to deprive the rightful owner of it, or destroyed the property."

Much of the confusion has arisen from a failure to distinguish between the necessity of proof of intention and the evidence required to prove it. It seems clear that, although in many cases of conversion the evidence is of such a nature that the act itself constitutes sufficient proof of intention, it is necessary to prove an intent to convert. For example: In Spooner v. Manchester, the act of departing from

54

50 Marsden v. Cornell, 62 N. Y. 215, 221, 222. Vining v. Baker, 53 Me. 544.

51 Bigelow, Torts (8th ed.), p. 397.

52 8 Exch. 431 (Eng.).

53 102 Mass. 503.

54 133 Mass. 270.

the contract of hiring was equivocal; it might have been done with intent to deprive the owner of the goods, or, as was actually the fact, it might have been the consequence of an honest mistake and with no intent to deprive the owner.

In Wellington v. Wentworth,55 the defendant was driving a drove of cattle along the highway, and the plaintiff's cow joined the drove, and was driven with it by the defendant to New Hampshire and pastured there, during the season; in the autumn, on the return of the drove to Massachusetts, the defendant returned the cow to the plaintiff. It was held there was no conversion on the ground that the defendant did not know that the cow had joined the drove. "Yet if the defendant had driven the cow to New Hampshire and pastured her there, knowing that she belonged to the plaintiff and intending to deprive him of her, there can be no doubt that it would have been a conversion.'' 56

14. Same subject-Intent to convert.-"Intent to convert" does not necessarily mean that the plaintiff must prove that the defendant had a conscious purpose to deprive some particular person of his ownership or dominion; nor does it mean that the plaintiff must prove knowledge of his rights on the part of the defendant in all cases. If the defendant's act is of such a nature as, of itself, indicates an intention inconsistent with, or in violation of, the plaintiff's right, this is sufficient evidence of intent.57

55 8 Met. 548 (Mass.).

56 Field, J., in Spooner v. Manchester, 133 Mass. 270, 274. 57 England v. Cowley, L. R. 8 Ex. 126 (Eng.).

For example: B innocently purchases goods from A who has stolen them from C, B taking possession of the goods under the sale. This is a conversion; B's act is consistent only with intent to deprive all the world of the goods and hence, with intent to convert.58

It is commonly said that where the defendant's act is an unequivocal act of dominion, no other evidence is required to establish a conversion.59 Such language is consistent with the proposition under discussion; such an act is conclusive of the intent to convert. On the other hand, if the act is equivocal, consistent either with intent to convert or the absence of it, further evidence of the intent is required.

"If a person wrongfully exercises acts of ownership or of dominion over property under a mistaken view of his rights, the tort, notwithstanding his mistake, may still be a conversion, because he has both claimed and exercised over it the rights of an owner; but whether an act involving the temporary use, control or detention of property implies an assertion of a right of dominion over it, may well depend upon the circumstances of the case and the intention of the person dealing with the property." If A wrongfully takes the goods of B, by acts amounting to a conversion, and temporarily places them in the hands of C, as a mere bailee or depos

99 60

58 Galvin v. Bacon, 11 Me. 28. Intent to convert means, then, no more than that the defendant has, bý conduct or otherwise, claimed or exercised the right of an owner. Spooner Manchester, 133 Mass. 270, 274.

59 Pease v. Smith, 61 N. Y. 477. In fact, in this case the court says that knowledge and intent are immaterial. The truth is that knowledge was immaterial and intent was proved.

Go Field, J., in Spooner v. Manchester, 133 Mass. 270, 274.

61

itary, C is not liable to B if he acted innocently, even though he subsequently redelivers the goods to A. He would be if he knew that A had wrongfully taken them from B, or if he should refuse to deliver them to B upon demand. So if A wrongfully, and by acts amounting to a conversion, takes the goods of B, and delivers them to a common carrier, who transports them at A's direction to a designated place and there delivers them as A orders, the carrier is not, so far, liable in conversion to B.62 But if the owner, B, demands the goods from the carrier, the latter is liable in conversion, if he refuses to deliver them up.63 The explanation is that the temporary possession by the innocent agent, bailee or carrier, is an equivocal act consistent with recognition of the true ownership, so long and only so long as the agent, bailee or carrier exercises no other act which is inconsistent with such recognition. If he assumes so to act, as by a sale,64 a letting, a destruction, or an absolute refusal to deliver up upon demand by the true owner, he acts at his peril, and is liable in conversion, notwithstanding his innocence or lack of knowledge of the true owner's right. Intent to convert is quite consistent with lack of knowledge of another's rights in the goods, as well as with innocence, so far as the question of conscious wrong

61 Loring v. Mulcahy, 3 Allen 575 (Mass.); Hudmon v. DuBose, 85 Ala. 446, 5 So. 162; Leonard v. Tidd, 3 Met. 6 (Mass.); Greenway v. Fisher, 1 C. & P. 190 (Eng.); Leuthold v. Fairchild 35 Minn. 99; Frome v. Dennis, 45 N. J. L. 515.

62 Gurley v. Armstead, 148 Mass. 267, LEADING ILLUSTRATIVE CASES. 63 Atch., Topeka & Santa Fe R. R. v. Jordan Co., 67 Kan. 86, 72 Pac. 533; Cooley, Torts (Students' ed.), p. 429.

64 Robinson v. Bird, 158 Mass. 357 (sale by auctioneer).

doing is concerned. If A buys goods from B, supposing and having reasonable grounds to suppose that B is the owner, A considers himself the owner of the goods to the exclusion of all other persons. A exercises dominion over the goods as an owner; and while he may not and probably does not consciously intend to deprive any person wrongfully of his property, it cannot be said that A's control of such property is other than as an owner of it. If it turns out that B had no title but that C is the real owner C may hold A liable.

Bad Faith. From what has just been said it will be perceived that, apart from the question of title acquired by innocent purchase,65 bad faith is not an essential element of the wrong in actions for conversion. Of course, if the plaintiff can prove that the defendant has exercised dominion over the plaintiff's property, with knowledge of the plaintiff's rights therein and with conscious purpose, a clear case of conversion, or even larceny, is made out. The point is, however, that a defendant who has exercised acts of dominion and control over another's property, is liable in trover for the value, even though such acts were exercised in a mistaken and innocent belief that no one had any claim on the property, superior to his own.60

15. Demand and refusal.-Much of the litigation in trover cases has involved the question whether the suit could be maintained without proof that the

65 88 20-23, inclusive.

66 Cases above; Ashton v. Allen, 70 N. J. L. 117, LEADING ILLUSTRATIVE CASES. Compare Cernahan v. Chrisler, 107 Wis. 645, 83 N. W. 778 (conversion by innocent agent); Stephen v. Elwall, 4 M. & S. 295 (Eng.).