William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) online

. (page 37 of 109)
Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 37 of 109)
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own use ( Waterhury v. Westervelt, 9 N. Y. [5 Seld.] 598) ; or if he
sells more goods than are necessary to satisfy an execution, if the
goods are divisible. Aldred v. Constable, 6 Q. B. 381.

§ 16. Conversion by claim of interest or right. The mere asser-
tion of title to, or an interest in property, when a person setting up the
claim has not the possession or control of it, is not an act of conver-
sion. Lowry v. Walker, 4 Yt. 81. But, if a person having property
in his possession, either actually or constructively, claims a right
in it, or to its possession, and retains control over it, he is guilty of
an actionable conversion {Firemam^s Ins. Co. v. Cochran, 27 Ala. 228 ;
Glaze Y. McMillion, 7 Port. [Ala.] 279 ; Taylor v. Harrall, 4 Blackf .
317 ; Reid v. Colcock, 1 IST. & M. [S. C] 592 ; EeynoUs v. Shuler, 5
Cow. 323 ; Gilman v. Hill, 36 K. H. 311) ; as having the goods in his
possession, if he threatens the rightful owner with violence, or that
he will sue him if he attempts to take them away {Crocket v.
Beaty, 8 Humph. 20 ; Hare v. Pearson, 4 Ired. 76) ; but an inter-
ference with another's property, which leaves the owner's rights undis-
puted, is not a conversion even though attended with injurious conse-
quences to the owner. Nelson v. Whetino7'Q, 1 Rich. 318.

§ 17. Conversion by claim of lien. If a person claims a lien upon
property where none exists by law, and refuses to give it up until such
pretended lien is satisfied, he is guilty of a conversion of, and liable in
trover, for the property, as if an agistor of cattle should refuse to give
them up until he was paid for their pasturage, because in law he has
no lien ( Wills v. Barrister, 36 Yt. 220 ; Lewis v. Tyler, 23 Cal. 364 ;
Goodrich v. Willard, 7 Gray, 183; Bissell v. Pierce, 28 N. Y. 252);
or if the keeper of a livery should refuse to give up a horse or carriage
until paid for its keep {Powers v. Hubbell, 12 La. Ann. 413 ; Miller
V. Marston, 35 Me. 153) ; or if one not a warehouseman or engaged in
the business of storage refuses to give up goods that have been stored
in his building {Alt v. Weidenberg, 6 Bosw. 176) ; or if a person, who
has taken care of a horse for another, refuses to give it up until paid
for his services. Hoover v. Epler, 52 Penn. St. 522.

So if a person, who has a lien upon property, refuses to give it up
YoL. YL— 26


upon other grounds, ho tliercby waives his lien, and if there is no va-
lidity in the claim set up by him to the property, he is liable for its con-
version without a tender of the amount of his lien. Thus, in Board-
tnan v. Sill^ 1 Camp. 410, ti, an action was brought for some brandy
which lay in the defendant's cellars, and which, when demanded, he
had refused to deliver up, saying that it was his own property. At
this time certain warehouse rent was due the defendant on account of
the brandy, of which no tender was made to him. It was contended
in defense of the action that the defendant had a lien upon the brandy
and until that was paid, trover would not lie therefor, but the court
(Lord ELLENBOKOUon) held that, as the brandy had been detained on
a different ground and as no demand of warehouse rent had been made,
the defendant must be taken to have waived his lien, if he had one,
and consequently that the action would lie. So where a person refuses
to give up property on demand, upon which he has a lien without set-,
ting up his lien, he is thereby treated as waiving the lien, although he
sets up no specific ground for his refusal. Hanna v. Plieljps^ 7 Ind.
21; DowsY. Ilorewood, 10 Barb. 183; Thatcher y. Harlan, 2 Houst.
(Del.) 178. In all cases, in order to be made available in defense in
an action of trover, the lienor must have set up his lien specifically as
one of the grounds upon which he predicated his refusal to deliver on
demand, otherwise he cannot rely upon it in defense {Picquet v.
McKay, 2 Blackf. 465 ; Bean v. Bolton, 3 Phil. [Penu.] 87), and if
he has delivered the goods to the owner without payment of the lien,
he loses it and cannot by afterward getting possession of the property
claim to retain it until the lien is satisfied. In such a case he would
be hable for a conversion of the property. Perkins v. Boardman, 14
Gray, 481; King y. Indian Orchard Canal Co., 11 Cush. 231; Bean
V. Bolton, 3 Phila. (Penn.) 87 ; Picquet v. McKay, 2 Blackf. 465.

§ 18. Conversion by sale. The most common illustration of domin-
ion over property is by its sale, and it may be said that every sale of
property absolutely constitutes a conversion if made without title or
authority from the person in whom the true title is vested {Harris v.
Saunders, 2 Strobh. Eq. 370, n. ; Gilma/n v. Hill, 36 K. H. 311 ;
Webher v. Davis, 44 Me. 147; Clark v. Whitaker, 19 Conn. 319;
Duncan v. Stone, 45 Yt. 118; Loeschman v. Machin, 2 Stark. 311),
and this is so, whether the property is sold by an individual as such, or
by an officer {Aldred v. Constable, 6 Q. B. 381 ; Grainger v. Hill, 4
Bing. K. C. 221), and the person purchasing acquires no title thereto,
and consequently is equally liable for its conversion as the person sell-
ing {Cla/rk V. Wells, 45 Yt. 4; 12 Am. Rep. 187; Clark v. Rideout,
39 'E. H. 238 ; Carter v. Kingman, 103 Mass. 517), and it is a matter



of no consequence so far as the question of liability is concerned
■whether the purchaser was ignorant of the facts or not. Morrill v.
Moulton, 40 Yt. 242 ; Johnson v. Powers, 40 id. 611 ; West Jersey Co.
V. Trenton E. R. Co., 32 N. J. Law, 517; Tollman v. Turck, 26 Barb.
567 ; Hoffman v. Caroio, 22 Wend. 285 ; Rogers v. Iluie, 1 Cal. 429 ;
Cooper V. NewTnan, 45 N. H. 339 ; Dixon v. Caldwell, 15 Ohio St.
412. Mere possession of property by a person affords no evidence of
ownership of or authority to sell it, and a person purchases it of him
without ascertaining where the true title is at his peril, and however
honestly mistaken, he will be liable to the true owner for a conversion
of the property. Taylor v. Pope, 5 Cold. 413 ; Gilmore v. Newton,
9 Allen, 171 ; Sjyraights v. Hawley, 39 IS". Y. 441. This is also the
rule where property is sold conditionally, that is, where the title is
reserved to the vendor until the property is fully paid for. In such a
case the person holding the property can give no title thereto by a
sale, even though he has paid a part of the pui'chase-money. So long
as am,y, even a small portion of the purchase-money remains unpaid,
the title is in the vendor and he may pursue the property and recover
its full value in trover of one who purchases it of his vendee. Duncam,
V. Stone, 45 Yt. 118 ; Clark v. Wells, id. 4; 12 Am. Kep. 187.

Where, however, there is a sale of property absolutely, but which is
voidable as between the vendor and vendee because of fraud on the
part of the vendee, while the vendor can rescind the contract as to the
vendee and maintain trover against him therefor {Ayres v. French, 41
Conn. 142 ; Dow v. Sanlorn, 3 Allen, 181 ; Hall v. Naylor, 18 K. Y.
588 ; Ferguson v. Carrington, 9 B. & C. 59 ; Read v. Hutchinson, 3
Camp. 352 ; Kilhy v. Wilson, Ey. & Moo. 178 ; NoUe v. Adams, 7
Taunt. 89), yet, he cannot maintain trover against a purchaser from
his vendee therefor, and the reason is that as the fraudulent purchaser
acquires a title under his purchase, although defeasible if he passes that
to an innocent purchaser before the title has been defeated by a rescis-
sion of the contract by the seller, it is then too late for the seller to elect
to treat the sale as void, because the rights of innocent third persons
have intervened. Williamson v. Russell, 39 Conn. 406 ; Cook v.
Oilman, 34 K H. 556; Titcomh v. Wood, SS Me. 561; Willoughhy
V. Moulton, 47 N. H. 207 ; Coggill v. R. R. Co., 3 Gray, 548 ; White
V. Garden, 10 C. B. 927.

§ 19. Stolen goods. A thief acquires no title to goods stolen by
him, and, except in the case of negotiable securities in the hands of a
honafide purchaser for value, the owner may maintain trover against
any person who purchases it from him, or otherwise comes into its
possession. BrecJcenridge v. McAfee, 54 Ind. 141. It has been held


that an auctioneer, selling stolen goods at public sale, is liable for their
conversion, although ignorant of the fact tliat they were stolen. Hoff-
mom V. Car(no, 22 Wend. 285 ; Lee v. Bayes, 18 C. B. 599 ; White
V. Spettigm^ 13 M. & W. 603. The only question of any importance
in this connection is, whether the action can be maintained until after
the conviction of the thief. By the Stat. Y & 8 Geo. 4, c. 29, § 57,
provision was made that no such action should be maintained until the
thief had first been convicted, when the courts were empowered to
award a restitution of the property to the owner. In England under
this statute it is held that an order of restitution is not necessary to
enable the owner to maintain trover after a conviction. Scattergood
V. Sylvester, 15 Q. B. 511. But a singular condition of the law grow-
ing out of this statute is, that during the interval between the com-
mission of the felony and the conviction the purchaser has a p^ima
■facie title liable to be defeated by the conviction i^Peer v. Humphrey ,
2 Ad. & El. 495 ; Addison on Torts [Wood's cd.], § 493) ; and that
persons who purchase during that period, in market overt, and sell
again before conviction, cannot be subjected to an action for taking
and converting the property {Gimson v. Woodfull^ 2 C. & P. 41 ;
Horwood V. Smith, 2 T. R. 750) ; and this is based upon the theory
that the title of the owner, dm-ing the period between the larceny and
the conviction, is suspended, and only revests when the thief is con-
victed. But this rule does not apply except as to purchasers in market
overt. White v. Spettigue, 13 M. & W. 603 ; Lee v. Bayes, 18 C. B.
699 ; 37 Eng. Law & Eq. 406.

In Pennsylvania it is held that even the thief, who is indicted for
the larceny, may be sued in trover by the owner, the civil suit being
triable only, until after the criminal proceedings are terminated {Key-
ser V. Rogers, 50 Penn. St. 275 ; Hutchinson v. Banh of Wheeling, 1
id. 42) ; and in Illinois it is held that trover will lie against an inno-
cent purchaser without a prosecution of the thief {Newhirh v. Dal-
ton, 17 111. 413) ; and in an English case {Lee v. Robinson, 37 Eng. L.
& Eq. 406 ; 18 C. B. 599, 609, note), a similar doctrine is held, and
the same rule prevails in Vermont {Courtis v. Cane, 32 Vt. 232) ;
and it is not the rule in this country that a conviction, or even an
attempt at conviction, is an essential preliminary to the bringing of the
action. Beazley v. Mitchell, 9 Ala. 780 ; Pettingill v. Rideout, 6 N.
H. 454 ; White v. Fort, 3 Hawks (K. C), 251 ; Lofton v. Yogles, 17
Ind. 105 ; Boston, etc., R. R. Corp. v. Dana, 1 Gray, 83, 100 ;
Ballew V. Alexander, 6 Humph. (Tenn.) 433, and numerous other




Section 1. When a demand is necessary. When property comes
lawfully into the hands of a person, that is, when he has received it
from the owner, or some person authorized to put it into his possession,
he cannot be held chargeable for its conversion until the owner, or some
person authorized by him, has demanded the same of him {Hall v.
Hobinson, 2 Comst. 293 ; Wilton v. Girdlestone, 5 B. & Aid. 847 ;
Morris v. Bills, Wright [Ohio], 343 ; Wilson v. Cook, 3 E. D. Smith
[N". Y.], 252; Hardy v. Keeler, 56 111. 152; Witherspoon v. Blew-
ett, 47 Miss. 570 ; Waring v. Penn. R. B. Co., 76 Penn. St. 491 ;
Kennet v. Robinson, 2 J. J. Marsh. 97) ; and the same rule prevails
where a person becomes an involuntary bailee of another's goods.
Thus, where the plaintiff's sheep, by accident, become mixed with
those of the defendant, and he, after due diligence, cannot separate
them, he cannot be made chargeable in trover until a demand has been
made upon him for the sheep {Cutter v. Fanning, 2 Iowa, 580) ; and
the same rule prevails when a person stands in the relation of a gratui-
tous bailee {Polk v. Allen, 19 Mo. 467 ; Brown v. Cook, 9 Johns.
367 ; Kennet v. Robinson, 2 J, J. Marsh. 84) ; and, generally, in all
cases where the defendant came lawfully into the possession of prop-
erty, the plaintiff must either establish an actual conversion, or must
show that he demanded the goods, and that the defendant neglected or
refused to deliver them {Sluyter v. Williams, 37 How. [N. Y.] 109 ;
Yeager v. Wallace, 57 Penn. St. 365 ; Sherry v. Picken, 10 Ind. 375 ;
Carleton v. Lovejoy, 54 Me. 445 ; Thonvpson v. Rose, 16 Conn. 71 ;
Chopin Y. Siger, 4 McLean [C. C], 378; Steioart v. ISpedden, 5 Md.
433 ; Mitchell v. Williams, 4 Hill, 13 ; Andrews v. Shattuck, 32 Barb.
396) ; and in a case of intenningling of goods, it is held that there
must be a demand, even though there has been a previous conversion.
Bond V. Ward, 7 Mass. 123. So when goods have been sold to a
person who procm*ed them upon credit by fraud, the vendor must
demand the goods of him before suit brought. Lacker v. Rhodes, 45
Barb. 499. So where a person has sold goods conditionally, retaining
the title until paid for, and they are attached as the property of the
vendee, and the vendor assigns the claim, the assignor must demand
the property of the officer before suit brought. Hicks v. Cleaveland,
39 Barb. 573 ; Wilson v. Cook, 3 E. D. Smith (N. Y.), 252.

§ 2. When a demand is not necessary. When a person came
into the possession of property wrongfully, or tortiously, as by force,


or through one who had no title thereto, a demand is not necessary
( Woodburi/ V. long, 8 Pick. 543 ; Pai(/e v. O'Neal, 12 Cal. 483 ; Far-
inngton v. Payne, 15 Jolins. 431 ; Jones v. Dmjan, 1 McCord, 428;
Gentry v. Madden, 3 Ark. 127 ; Gilmore v. Newton, 9 Allen, 171) ; as
where a servant on leaving his master's service takes away the master's
goods {P'dshury v. Webh, 33 Barb. 213) ; or where the original taking
amounted to a trespass {Matheney v. Johnson, 9 Mo. 232) ; or the
property was purchased of one who had no title {Peering v. Austin,
34 Vt. 330 ; Hijde v. Nohle, 13 N. II. 494) ; or the property was
obtained by fraud, and the person purchased it of the fraudulent pur-
chaser, with knowledge of the fraud {Ryam, v. Brant, 42 111. 78 ;
Thurston v. Blanchard, 22 Pick. 18 ; Luchey v. Roberts, 25 Conn.
486) ; or where one has purchased stolen goods, although ignorant of
the fact {Pease v. Smith, 61 N. Y. 477 ; Courtis v. Cane, 32 Yt. 232) ;
or when the property was obtained by means of false representations
{Bruner v. Dyball, 42 111. 34) ; or where property is obtained by duress
or threats {Foshay v. Ferguson, 5 Hill, 154) ; or where a promise on the
part of the defendant to return the goods within a certain time is
shown, which he has not kept {Durell v. Mosher, 8 Johns. 445) ; or
where an executor or administrator has appropriated as a part of the
estate, property which by law passes to the widow {Curd v. Curd, 9
Humph. 171) ; or where property is taken by mistake, as, where the
defendant carried away the hay of another from a railroad depot sup-
posing it to be his own {Bartlett v. B.oyt, 33 N. H. 151) ; or where one
aids a person in selling property that he holds only under a conditional
sale. JFisk v. Ewen, 46 K. H. 173. A demand is never necessary, where
an actual conversion is shown {Uimes v. McEinney, 3 Mo. 382 ; David-
son V. Donadi, 2 E. D. Smith [N. Y.], 121 ; Jewett v. Partridge, 12
Me. 243 ; Calkins v. LocTcwood, 17 Conn. 154 ; Garvin v. Luttrell, 10
Humph. 16 ; Dudley v. Sawyer, 41 ]^. H. 326 ; Dunnahoe v. Wil-
liams, 24 Ark. 264 ; Farle v. Vaii Bur en, 7 1^. J. Law, 344 ; Newsum
V. Newsum, 1 Leigh [Ya.], 86) ; as, where the property has been mis-
used or abused {Maguyer v. Hawthorn, 2 Harr. [Del.] 71) ; or appro-
priated, and on the trial the defendant sets up title in himself {Powell
v. Olds, 9 Ala. 861) ; or where a wrongful use of the property is shown
{McPherson v. Neuffer, 11 Rich. [S. C] 267), or has been converted to
his own use {Dunnahoe v. Williams, 24 Ark. 264 ; Dudley v. Sawyer,
41 N". H. 326) ; or when the property has been sold {McPherson v.
Neuffer, 11 Rich, 267 ; Pease v. Smith, 61 IST. Y. 477) ; even under an
order of court, when the order is a nullity {Hall v. Chapman, 35
Ala. 553) ; or upon an execution [Robinson v. McDonald, 2 Ga. 116) ;
or where property sold conditionally is sold by the conditional pur-


chaser before the condition is performed {Whipple v. Gilpatrich,
19 Me. 427) ; or where a distress is sold by an officer after the time
limited by law {Pierce v. Benjamin^ 14 Pick. 356) ; or indeed in any
case where an actual conversion can be established without a demand and
refusal. Giltrwre v. Newton^ Allen, 171 ; Garvm v. Luttrell^ 10
Humph. 16 ; Davison v. Donadi^ 2 E. D. Smith, 121. " After a sale
has been made by the defendants," says Dwigiit, C, in Pease v. Smithy
61 N. Y. 477, 481, " They have assumed to be the owners and will be
estopped to deny, in an action by the lawful owner, the natural con-
sequences of their act, and to resist an action for the value of the
goods. * * * In Harris v. Saunders, 2 Strobh. Eq. 370,

the defendant having the property in his own hands by purchase, from
one who had no title, sold it to another who carried it beyond the plain-
tiffs reach, and received the purchase-money. These acts were held
to amount to a conversion though the defendant was not aware of the
plaintiff's title. As according to these views the conversion took place
at the moinent of the unauthorized sale * * no demand was
necessary * * Esmay v. Fanning, 9 Barb. 176 ; Yincent v.
Gonkling, 1 E. D. Smith, 203 ; Munger v. Hess^ 28 Barb. 75 ; Brown
V. Beason, 24 Ala. 466. After a wrongful taking and carrying away
of property, the cause of action has hecome complete without further
act on the plaintiffs part. Brewster v. Silliman, 38 IST. Y. 423 ;
Hanmer v. Wilsey, 17 "Wend. 91 ; Otis v. Jones, 21 id. 394." The same
rules apply to all species of acts amounting to a conversion, and it will
therefore be profitable to refer to Art. 2, ayite, pp. 163, 164, to ascertain
when a demand should be made or may be dispensed with.

Where goods have been converted by a bailee, it is presumed to be
wrongful, and trover may be maintained without a previous demand
( Wari7ig v. Pemi. B. B. Co., 76 Penn. St. 491 ; Kyle v. Gray, 11
Ala. 233) ; although, in the first instance, the property came lawfully
to the defendant. Id.

§ 3. What is a sufficient demand. A demand, in order to be
operative, and to afford evidence of a conversion, must be so specific as
to leave no doubt as to what property it related {Abington v. Lipscomb,
1 Q. B. 776, 780) ; and the question as to whether, if the demand is too
large, that is, embraces more property than the owner is entitled to, is
sufficient, as to those to which he is entitled, has not been definitely
settled. Mr. Addison, in his work on Torts, lays down the doctrine that
it would not be, and predicates a doctrine upon AMngton v. Lipscomh,
1 Q. B. 766, 780 ; but the case does not sustain his position. It is
true that in that case the demand was for seven heriots, when the plain-
tiff was only entitled to five, but the decision of the court proceeded


upon the ground tliat the demand being for seven, when he was only
entitled to five, that it could not be held good because he did not des-
ignate which Jive he claimed, and leaves the question as to the effect of
a demand that is too large, wholly undetermined. In Massachusetts, in
Delano v. Curtiss, 7 Allen, 470, the question was considered, and in
that case it was held that it was a question for the jury, whether a
refusal to deliver under such a demand was such a clear and absolute
refusal to deliver the property to which the plaintiff" loas entitled, as
to amoimt to a conversion, and that per se the refusal to deliver was
not such an assumption of control or dominion over the property, to the
exclusion, or in defiance of the plaintiff's rights, as amount to a con-

In Vermont, in Gragg v. Hull^ 41 Yt. 217, 222, it was held, that the
fact that the demand is too large will not excuse the defendant from
delivering all the property that the plaintiff" was entitled to have, and,
from these cases, which seem to be the only ones in which the question
has been directly raised, there seems to be no doubt that the rule is,
that, when a demand is too large, the defendant is nevertheless bound
to deliver up such property as he may have in his hands, covered by
the demand, belonging to the demandant, and failing to do so, is liable
therefor unless the demand is so vague, as to leave it uncertain to what
specific property it relates. A demand of a few articles not owned
will not vitiate. Marine Bank v. Fishe, 71 IS". Y. (26 Sick.) 354.
If a written demand is sent by mail, the burden is upon the plaintiff
to show that the defendant received it long enough before the suit
was brought, to enable him to deliver the property and that he abso-
lutely refused to deliver. A demand by mail cannot be set up,
except where such proof can be made, because the defendant is not
bound to reply by mail, nor is he bound to go out of his way to
deliver the property, and a failure to do either affords no evidence of
a conversion. Pattee v. Gilmore, 18 IST. H. 460. And a demand in
writing, left at the defendant's house, is not sufficient,' unless the cir-
cumstances proved are such as to raise a presumption that he received
it before action brought. White v. Demary, 2 N. H. 546.

A demand must be made by the owner personally or by some person
authorized by him to make it, and, where it is made by an agent, the
defendant may require reasonable proof of his authority to receive the
property, and unless reasonable proof is furnished, the demand and
refusal afford no evidence of a conversion. Blankenship v. Berry ^
28 Tex. 448 ; Solomons v. Dawes, 1 Esp. 83. But if the defendant
does not question the authority of the agent, but predicates his refusal
upon other grounds, the agent is not bound to exhibit his authority.

TROYER. . 209

West V. Tupj?er, 1 Bailey (S. C), 193. The plaintifi himself is not,
upon making a demand, bound to establish, or exhibit his title to the
property. Batcliffe v. Vance, 2 Const. Ct. (S. C.) 239. 13ut where
there is a reasonable doubt as to the title, the question, as to whether
the defendant's refusal to deliver upon that ground is evidence of a
conversion, will depend upon the circumstances, and it will be left for
the jury to say, whether, under all the circumstances, he was justified
in his refusal, and if so, the demand and refusal affords no evidence of
a conversion. liohinson v. Burleigh, 5 l!^. II. 225 ; Carroll v. Mix,
51 Barb. 212 ; Dowd v. Wadsioorth, 2 Dev. (N. C.) 130. Thus, in
Hyde V. Manchester, tried at Rutland county court, Yt., at Sept. Term,
1857, the defendant received from a person, who had conditionally
bought 'a span of horses of the plaintiff, the horses in question, to pas-
ture for him. Shortly after the horses were left with him, the plain-
tiff demanded the horses of the defendant, claiming a right to them,
because the purchaser had broken the conditions of purchase. The
defendant declined to give them up until he had had an opportunity
to consult his attorney to ascertain what he ought to do, and the same
day he went to consult his attorne}^ upon that point, and, while on his
way, a writ in favor of the plaintiff declaring in trover for the horses
was served upon him. While he was absent upon this mission, the
horses were stolen out of the pasture, and never heard of afterward.
Upon the trial. Peck, J., held, and charged the jury that, if the defend-
ant entertained a honajide doubt as to the plaintiff's title to the horses,
he was entitled to a reasonable time to determine what he should do,
and that if he was guilty of no unreasonable delay in the matter, and
the horses were taken out of his possession without his connivance or
consent before such reasonable time had elapsed, he could not be held
chargeable for their conversion by his refusal to deliver under the
demand made, and this seems to be the rule generally held. Fillott v.
Wilkinso7i, 3 H. & C. 315 ; Carroll v. 3£ix, 51 Barb. 212 ; Wilson v.
Cooh, 3 E. D. Smith, 252; Ingalls v. Bulhleij, 15 111. 224; OgU v.
AtUnso7i, 5 Taunt. 759 ; Spence v. Mitchell, 9 Ala. 711.

A demand of payment for the goods is held to be equivalent to a
demand for the goods themselves ; if payment is refused, and a refusal
of payment is put upon the ground that nothing is due, it is equivalent

Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 6) → online text (page 37 of 109)