Claim for 2. In or about the month of May, 1874, one A. W., being conversion the owner of two roan cob horses, delivered them to the deof horses. When a for conver sion. Vendee of goods not paid for cannot sue vendor for refusal to deliver them. Special property gives right to sue. circumstances, maintain the action against the person having the general property in the chattel, as where the former delivers it back to the latter for a temporary purpose. he may after that purpose is satisfied, if the former refuse to re-deliver it, maintain the action against him. (Roberts v. Wyatt, 2 Taunt. 268.) A joint owner or tenant in common of goods cannot maintain this action against a co-owner in respect of any act of the latter not inconsistent with his ownership; but if the latter does an act inconsistent with the joint ownership, such as a complete destruction of them (Jacobs v. Seward, L. R. 5 H. L. 464), or a sale in market overt (Barton v. Williams, 5 B. & A. 403), this amounts to a conversion of them, for which the other part owner can sue him in this action-at least, as regards the plaintiff's undivided part in the case of a sale. It is, however, now settled that the sale of an entire chattel by a co-owner, which does not wholly deprive the other of the power of repossession, is not a conversion, as it only operates on the undivided share of the vendor; but it would be otherwise if sold in market overt, as that would change the property in the whole chattel. (Harper v. Godsell, L. R. 5 Q. B. 422.) It has been held that the removal of entire chattels by one tenant in common without the consent or knowledge of the other, for the purpose of selling and appropriating the proceeds to his own use (semble, as opposed to an actual sale), does not amount to a conversion, though the removal has created a lien on them by a third party. (Jones v. Brown, 25 L. J. Ex. 345.) And it has been held that one member of a friendly society could not maintain the action against another member who removed and delivered to a stranger a box containing money (both belonging to the society), which was deposited with the members. (Holliday v. Camsell, 1 T. R. 658.) Another instance of the rule that the owner of goods to which he has not the right of immediate possession cannot maintain this action. is that where goods are sold without credit, the buyer cannot maintain trover for them unless he has tendered the price, though by the agreement to purchase, the property has vested in him (Bloxham v. Sanders, 4 B. & C. 941; Martindale v. Smith, 1 Q. B. 389; Page v. Eduljer. L. R. 1 P. C. 127, 145); or even where the goods are sold on credit, but with an arrangement for their delivery by instalments. In this case, if the vendee becomes insolvent before all the instalments become due, the vendee cannot maintain trover for any instalment which has become due until he has tendered the price of any already delivered and not paid for, as well as that in reference to which the action is sought to be maintained. (Er parte Chalmers, L. R. 8 Ch. 289; Morgan v. Bain. L. R. 10 C. P. 15; Ogg v. Shooter, L. R. 10 C. P. 159.) So where the vendor of goods sold on credit stipulates for a lien until payment, though he gives vendee access to the goods by means of a key of the place where they are warehoused, to which the vendor also has access. (Millgate v. Kebble, 3 M. & Gr. 100.) On the other hand, a person who has a special ownership may maintain the action where he has the right to immediate possession, such as an agister of cattle (Br. Abr. Tresp. 67), or a sheriff in possession under an execution. (Ex parte Williams, L. R. 7 Ch. 314.) But a landlord who distrains and impounds goods cannot maintain the action, as the goods are in the custody of the law. (Moneax v. Goreham, 2 Selw. N. P., 10th ed., 1351; and see Turner v. Ford, 15 M. & W. 212, per Parke, B.) A person having a special property in chattels may, in some circumstances, maintain the action though the goods may have never come into his possession, as a factor to whom goods have been consigned, fendant, and he received them in order that he might break in Claim for the same. conversion of horses. (Fowler v. Down, 1 B. & G. 614; Morison v. but by whom they have never been received. session wrong. As against wrongdoers.] Mere possession is sufficient to support Mere posthis action by the person who had possession against a wrongdoer who cannot show a better title in himself, or an authority to keep possession sufficient under a better title. (Armoury v. Delamiric, 1 Sm. L. Cas. 7th ed. 357; against Elliott v. Kemp, 7 M. & W. 312.) So the finder of goods, though picked up in the house of a third person. (Bridges v. Hawkesworth, 21 L. J. doers. Q. B. 75. See for other instances Sutton v. Buck, Taunt. 302; Buckley v. Gross, 32 L. J. Q. B. 129; Burton v. Hughes, 2 Bing. 173; Northam v. Bowden, 24 L. J. Ex. 237 ; Rowe v. Brenton, 8 B. & C. 737 ; Taylor v. Parry, 1 M. & Gr. 604; Branker v. Melyneux, 3 M. & Gr. 84 ; Bourne v. Fosbrooke, 34 L. J. C. P. 164.) What constitutes conversion.]—Conversion is constituted either by an What act of direct conversion or by a demand by the plaintiff and a refusal by constitutes the defendant to deliver the goods to him. An unlawful taking of the conversion. goods out of the possession of the owner is a conversion (Powell v. Hayland, 20 L. J. Ex. 82), provided the taking and detention be with the intention to convert them to the use of the taker or of some other person, or has the effect of destroying or altering their quality or nature; for a mere trespass, not interfering with the owner's dominion of the property, is not a conversion. An unauthorised act which deprives another of his property permanently or for an indefinite time, is a conversion. (Hiort v. Bott, L. R. 9 Ex. 86, 89.) The using a thing without the permission of the owner may amount to a conversion. (Keyworth v. Hill, 3 B. & A. 687.) Thus the wearing of a pearl. (Petre, Lord, v. Heneage, 12 Mod. 519.) Semble, the conversion of a part is not conversion of the whole if the remainder continues in a fit state to be delivered up. (Philpott v. Kelly, 3 Ad. & E. 106, per Patteson and Coleridge, JJ.) But delivery The misdelivery of goods by a carrier is a conversion. in the ordinary course of business at a place directed, is no conversion, although the goods were delivered to a person not intended by the sender. (McKean v. McIvor, L. R. 6 Ex. 36.) So if a carrier after refusal to accept the goods at the consignee's address misdelivers them to another person, this is not a conversion if he has acted with reasonable care and caution with reference to such goods. (Heugh v. L. & N. W. Rail. Co., L. R. 5 Ex. 51.) Where goods were by mistake consigned to the defendant, who by his act, though bonâ fide, enabled a third person to obtain delivery of them, whereby they were lost to the owner, this was held to be a conversion by the defendant. (Hiort v. Bott, supra.) Taking goods by assignment from a person having no right to assign them, is a conversion by the assignee. (Marston v. Phillips, 9 L. T. N. S. 289.) Semble, however, there should be a demand and refusal in such a case. (Combie v. Davies, 6 East, 538.) A person may of course dispose of goods fraudulently bought, but the sale is invalid, and a person to whom they afterwards come through various regular and bona fide sales, and who breaks them up, is liable in trover. (Fowler v. Hollins, L. R. 7 Q. B. 616, 633, Ex. Ch.; aff. in H. of Lords.) But where goods are placed in the hands of a factor for sale, a person whom the factor authorises to sell them and reimburse himself for the When misdelivery by carrier a conversion. Assignee or vendee of goods from person having no title. Claim for 3. The defendant broke them in and kept them up to the conversion sale of them by him as hereinafter mentioned. of horses. Destruction when a amount of bills given for them to the factor, is not liable in trover. (Stierneld v. Holden, 4 B. & C. 5.) The destruction of property by the defendant is a conversion if done with the intention of destroying or appropriating it. In the hands of a conversion. bailee the destruction through accident or mere carelessness of the bailee is not a conversion; but it is otherwise if so destroyed while in the wrongful possession of the defendant, though not with his privity, or if it is damaged while he is exercising a dominion over it inconsistent with the rights of the real owner. (Heald v. Carey, 21 L. J. C. P. 97.) When demand and refusal a conversion. Where goods attached in defendant's hands. Refusal by agent. What is a demand. Measure of lamage. Demand and refusal.]—A demand and refusal are evidence of a conversion, but this is only presumptive evidence, which is capable of being rebutted, as by showing that at the time of the demand the defendant could not deliver the goods. (Smith v. Young, 1 Camp. 441.) Again, if a person finds a chattel, a refusal to deliver to the real owner until he proves his title is not necessarily evidence of conversion. (Gunton v. Nurse, 2 B. & B. 447; Clark v. Chamberlain, 2 M. & W. 78.) In such cases, if it appear that there was a bona fide doubt as to the title, and that only a reasonable time was taken for the purpose of clearing the doubt, it would not be a conversion. (Burroughs v. Bayne, 29 L. J. Ex. 185, 191, per Bramwell, B.) So a refusal by a servant of a company to deliver goods without the order of the company is not a conversion. (Alexander v. Southey, 5 B. & A. 247.) Again, where a person on a demand made on him to deliver a document does not deny the right of the person demanding it, but says it is in the hands of his solicitor, this answer is not evidence of a conversion. (Towne v. Lewis, 7 C. B. 608; and see Canot v. Hughes, 2 N. C. 448.) And where the goods which are the subject of the action have been attached by the order of a Court, in an action against a person who had the goods in his possession as hirer and deposited them with the defendant, a refusal to deliver them by him is not a conversion. (Verrall v. Robinson, 2 C. M. & R. 495.) This decision seems inconsistent with the case of Pillott v. Wilkinson, 34 L. J. Ex. 22, Ex. Ch., where the defendant, a wharfinger or warehouseman, who had goods in his possession which had been attached, and whose clerk, on a demand made of them by the plaintiff, to whom the depositor had given a warrant for them, merely said there was a difficulty, as there was an attachment, and the defendant himself merely asked for time, but did not refuse to deliver, was held guilty of a conversion. Refusal by agent, &c.]-A refusal by the defendant's general agent is not sufficient to constitute a conversion, but if an agent acts under the special instructions of the principal, his refusal is sufficient. (Pothonier v. Dawson, Holt, N. P. 383.) But it has been held that a refusal by the shop servant or by the wife of the defendant is sufficient without any express directions from him. (Catterall v. Kenyon, 3 Q. B. 310.) What necessary to constitute a demand.]-A demand of the value of the goods is sufficient. (Thompson v. Shirley, 1 Esp. 31.) This is, however, a very old case. It has been held that a demand to re-deliver in the same condition as when it came into defendant's possession is not sufficient. (Rushworth v. Taylor, 3 Q. B. 699.) And a demand of "fixtures" is not sufficient as regards things which are not fixtures. Measure of damages.]—The amount of damages is the value of the chattel, and the price paid by a solvent vendee on a bonâ fide sale is the criterion of value. (France v. Gaudet, L. R. 6 Q. B. 199, 204.) But the amount realized on discounting a bill converted by the defendant is not such a test, and the plaintiff is entitled to its full amount. (Alsager v. Close, 10 M. & W. 576.) Where an unpaid vendor is sued for conversion by the vendee, the measure of damages is the difference between the 4. On the 26th April, 1875, the said A. W. filed a petition Claim for in the County Court of W., holden at K., for a liquidation of his conversion agreed price and the actual value. (Chinery v. Viall, 29 L. J. Ex. 180.) And where a pledgee converts the security wrongfully, the measure of damages in an action against him by the owner is the difference between the amount advanced and the actual value. (Johnson v. Stear, 33 L. J. C. P. 130; approved of in Donald v. Suckling, L. R. 1 Q. B. 585; and Halliday v. Holgate, L. R. 3 Ex. 299, Ex. Ch.) In trover for fixtures which have been severed, their value when severed as opposed to their value as incident to the structure, is only recoverable. (McGregor v. High, 21 L. T. N. S. 803, per Keating, J.) Special damages over and above the value are, however, recoverable. (Bodley v. Reynolds, 8 Q. B. 779; Wood v. Bell, 25 L. J. Q. B. 148, 231. But see Balme v. Hutton, 9 Bing. 477, Ex. Ch.) By 3 & 4 Wm. 4, c. 42, s. 29, the jury is empowered in this action to give damages in the nature of interest above the value of the goods. DEFENCES. Denial of plaintiff's title.]-The defendant when he is not a bailee or agent may set up the title of a third person (Leuke v. Loveday, 4 M. & Gr. 972); and he may do so where he is an agent or bailee, when the bailment has been determined, or where a third person claims the goods. (Biddle v. Bond, 34 L. J. Q. B. 137.) The right of a third person cannot be set up when such person has abandoned his right. (Bettely v. Reed, 4 Q. B. 511. And see Nicholson v. Cooper, 27 L. J. Ex. 393.) A mere wrongdoer cannot set up the jus tertii. (Jeffries v. Great Western Rail. Co., 25 L. J. Q. B. 107.) of horses. Measure of damage. Defences: 1. Denial of plaintiff's title. Lien.]-A right to a lien on the goods, whether special or general, and 2. Lien. a right to the possession of them until the claim is satisfied, is a good defence to conversion consisting of refusal to deliver. A special lien is generally created by the person in whose possession it is bestowing labour on it, for the amount of his charges for such labour; as a miller with regard to flour, a tailor with regard to clothes, a shipwright with regard to a ship repaired by him. An innkeeper has a lien on the goods of his guests for his charges, but he may not detain the clothes of his guest, as that would be equivalent to an imprisonment. (Sunbolf v. Alford, 3 M. & W. 248.) His lien extends to the goods of a third person brought to the inn, if they be such as a person might ordinarily be expected to travel with. (Threfall v. Borwick, L. R. 7 Q. B. 711; aff. in Ex. Ch., L. R. 10 Q. B. 210.) If, however, the innkeeper knows the thing belongs to a third person, he has no lien on it. (Broadwood v. Granara, 10 Ex. 417.) It seems the lien extends to everything for which the innkeeper would be liable in the event of loss. (Threfall v. Borwick, supra.) Alivery-stable keeper has no lien on horses for their food, but it is otherwise with regard to an innkeeper, unless he receives them in his character as livery-stable keeper only. (Allen v. Smith, 31 L. J. C. P. 306.) A trainer has a lien on the horses entrusted to him. (Bevan v. Waters, M. & M. 236.) Vendors of goods not sold on credit have a lien for the price on them; and where the purchaser has obtained possession by giving a cheque which is subsequently dishonoured, he may maintain trover for them. (Howse v. Crowe, Ry. & M. 414.) It is no answer to a special lien that the plaintiff has a set-off of a higher amount than the claim on which the lien is founded, unless there has been an agreement that one is to be deducted from the other. (Pinnock v. Harrison, 3 M. & W. 532; Weguelin v. Collier, L. R. 6 H. L. 286.) What is a special lien. Vendors of goods sold for cash. Claim for affairs by arrangement with his creditors, in pursuance of the conversion Bankruptcy Act, 1869, and under the proceedings had under it, the plaintiff was appointed trustee of his property. of horses. General lien. Bankers. Solicitors. Carriers. Insurance brokers. Factors. Waiver or dissolution of lien. A general lien may be proved by evidence of express agreement between the parties or of their mode of dealing, or of the general usage of other persons engaged in the same employment or trade of such notoriety that it may be assumed to be known to the owner of the goods. The instances of the usage should be numerous and important. (Rushforth v. Hadfield, 6 East, 526.) The following persons have a general lien :— Wharfingers for their general balance (Spears v. Hartly, 3 Esp. 81); calico printers (Weldon v. Gould, 3 Esp. 268); bankers for their general balance upon securities, which, however, do not include title deeds (Wylde v. Radford, 33 L. J. Ch. 51, 53); nor securities contained in boxes deposited at the bankers for safe keeping only, and to which he has not access. (Leese v. Martin, L. R. 17 Eq. 224.) Solicitors have a general lien on papers coming into their hands in the course of professional business. (Stevenson v. Blakelock, 1 M. & S. 535.) But a solicitor to the official liquidator of a company being wound up, has no lien for his costs on the file of proceedings in the winding-up and the documents relating thereto (Ex parte Pulbrook, L. R. 4 Ch. 627); nor to the books of account of a bankrupt as against the trustee. (See Gen. Rules on Bankruptcy, 1870, r. 110.) As to the lien of carriers, see Wiltshire Iron Co. v. Great Western Rail. Co., L. R. 6 Q. B. 776, 777, Ex. Ch.) A usage of carriers to retain goods under a general lien as against the consignee will not interfere with the consignor's right to stop in transitu. (Oppenheim v. Russell, 3 B. & P. 42.) And a right of lien against a consignor will not justify retention as against the consignee. (Butler v. Woolcot, 2 N. R. 64.) By the 97th section of the Railway Clauses Consolidation Act, 1845, railway companies who have incorporated that Act into their special Act, are empowered on non-payment "of tolls due to them in respect of any carriage or goods" to detain and sell such carriage or goods, or in case of their removal from the company's premises, any other carriages or goods belonging to the party liable to pay such tolls, and out of the proceeds to retain the amount due for tolls, and the charges and expenses of the detention and sale. This provision only applies to the property of persons or companies running their own waggons, &c., on the company's lines, and not to goods carried by the company as carriers. (Wallis v. London & South-Western Rail. Co., L. R. 5 Ex. 62.) Insurance brokers have a general lien for balances even as against an agent, unless they have notice that he is an agent. (Maanss v. Henderson, 1 East, 335.) Factors have a general lien on goods which come into their hands as factors. (Dixon v. Stansfield, 10 C. B. 399.) See as to the effect of an unauthorized pledging, &c., by factors or agents of goods in their possession in creating a lien in favour of the pledgees, &c., 4 Geo. 4, c. 83; 6 Geo. 4, c. 94, and 5 & 6 Vict. c. 39. See also Fuentes v. Montis, L. R. 3 C. P. 268, 275 (judgment of Willes, J.); Jewan v. Whitworth, L. R. 2 Eq. 692; Macknee v. Gorst, L. R. 4 Eq. 315. The English consignee of a West Indian plantation has a lien on the plantation in respect of a balance due to him from the proprietor of the plantation. (Chambers v. Davidson, L. R. 1 C. P. 296, 305.) When a general lien has been judicially established in the case of any class of persons or traders, it becomes a part of the law merchant, and judicial notice must be taken of it. (Brandao v. Barnett, 3 C. B. 519, 530.) Waiver or dissolution of lien.]—If a person on a demand of the goods, instead of relying on the lien, claims them as his own, or claims to hold them for a debt due to a third party, he thereby loses his lien. (See |