The opinion of the court was delivered by
Wilson, J.
The first question presented by the bill of exceptions is, whether upon the facts it was necessary to make a demand for the property before bringing the suit. No demand is necessary where the evidence is sufficient to prove a conversion of the property, and as to a conversion of the property the court instructed the jury that if they should find that the defendant, Beals, did not get a title to the cattle in question by his purchase of Thomas, the act of Beals in driving them away, and keeping and exercising dominion over them as his own property, constituted a conversion, and no demand by the plaintiff was necessary in order to perfect a right of action. We think the ruling of the county court upon this branch of the case was correct, and substantially in accordance with the rule laid down in Riford v. Montgomery, 7 Vt. 411; in Grant v. King, 14 Vt. 367; and in Deering v. Austin, 34 Vt. 330, from which we do not feel at liberty to depart. The rule that the -purchase of property under such circumstances, and holding possession as owner under such purchase, is-of itself a conversion of the property and subjects such purchaser to an action without demand or notice, though harsh when applied to an innocent purchaser, does not in general deprive him of the right, after the suit is commenced, to surrender the property taken, in satisfaction or mitigation of damages. It would seem to be a well settled rule in the English courts in actions of trover and trespass de bonis mportatis that when the taking was not wilful,'and the property is not materially injured, and is surrendered back to the real owner, the plaintiff will, on payment of the costs, be compelled to proceed at his [661]*661peril as to future costs. In Hart v. Skinner, 16 Vt. 138, Judge Redeieed in delivering the opinion of the court, after reviewing the English authorities, and conceding their correctness upon principle, says, “It is not very obvious, then, why the court should not have the same discretion here, in allowing or refusing costs, which is exercised by the courts in England. There it is every day’s practice to pay money into court (which had not been previously tendered) under a rule that the plaintiff accept the same and discontinue his suit or proceed at his peril as to costs. This sum paid into court is supposed always to cover the costs already accrued and a specific amount of debt or damage.” The reasons why the court in that case did not allow the defence were, 1st., no rule was seasonably moved for; 2nd, the conversion was wilful; and, 3rd, the property was essentially injured. The tendency of legislation in this State has been to afford all reasonable facilities for the payment of debt dr damages without costs of suit. An instance of such legislation is found in the relaxation of the common law rule as to the time of making a tender of the sum due upon contract. Yet cases frequently arise where the defendant never had an opportunity to make a tender, or for good cause omitted to make one within the time given by our statute. In such cases it might operate greatly to the prejudice of the defendant if he could not relieve himself by applying to the court and obtaining leave to pay the debt into court, together with the costs of the action up to that time. Our courts, upon equitable principles, have introduced the practice of allowing payment of the debt and costs already accrued in such cases to be made into court thereby placing the defendant, as to future costs, on the same ground as if he had seasonably made a tender of the same sum. I think the good sense of this practice is no less obvious in its application to some cases of torts, and it would seem upon principle that, in actions of trover and trespass de bonis asportatis when the taking is not wilful and the property is not essentially injured, the defendant should be allowed to surrender back the property and to pay the actual damage for the taking and detention of it, into court, together with the cost •of the action already accrued; and in case the plaintiff refused to accept the money paid into court, he must proceed at his peril, insomuch that if at the trial he is nonsuited or if the jury shall not give [662]*662him a sum exceeding the money paid into court, he will he obliged to pay the costs of the action. The numerous actions of trover and trespass da bonis asportatis growing out of the sale and transfer of personal property, where the vendor had no title, and where by his false or fraudulent representations, or by some indications of ownership, the vendee was induced to make the purchase, where there was no intentional wrong on the part of the purchaser, and no real dam.age done by him, require that he should be relieved from the rigor of the rule applicable to cases of wilful and malicious trespass. The rule allowing such surrender of the property and payment, in the discretion of the court, is founded in equity, which is “ the correction of that wherein the law (by reason of its universality) is deficient.” It goes upon the principle that when the defendant is ready and willing to pay and places within the reach of the plaintiff a sum of money equal to the actual debt or damage recoverable by law and the costs already accrued, the action ought not to be further prosecuted at the expense of the defendant. In this case it does not appear that there was such a wilful talcing of the property or that it was so injured that the defendant could not have surrendered it back to the plaintiff in satisfaction or mitigation of the damages after the suit was commenced. But the case shows that the defendant, after notice of the plaintiff’s title, without offering to return the cattle, sold them, consequently he has no just grounds of complaint on account of the want of notice before the suit was commenced.
2. It is insisted by the defendant’s counsel that the county court erred in not charging the jury in accordance with the defendant’s third request. Upon the evidence referred to in that request two grounds of defence were alleged: 1st, the authority of Thomas to sell the cattle to Beals, and, 2nd, that the plaintiff, by his declarations and acts, was estopped from setting up title to the property in question. The defendant’s testimony tended to show that sundry persons at different times, while Thomas was in possession of and carrying on the farm, went there for the purpose of purchasing cattle, butter, cheese and other products of the farm, and that the plaintiff told them in substance that Thomas did the trading, and that any trade they might make with him would be satisfactory to the plaintiff. And the defendant’s testimony also tended to show that Thomas [663]*663had authority from the plaintiff to sell or otherwise dispose bf the-cattle ; but the defendant gave no evidence tending to show tjiat he had any knowledge, before he made the purchase, of the mainer of dealing between the plaintiff and Thomas and third person! while Thomas was in possession of the plaintiff’s farm; The defendant conceded on trial that by the arrangement as to farm and s|)ck the title to the cattle sued for was in the plaintiff, and that under that contract and arrangement Thomas had no authority to sell tlpm, but it was claimed by the defendant that Thomas subsequently ibtained permission of the plaintiff to sell or otherwise dispose of thepattle in question.
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The opinion of the court was delivered by
Wilson, J.
The first question presented by the bill of exceptions is, whether upon the facts it was necessary to make a demand for the property before bringing the suit. No demand is necessary where the evidence is sufficient to prove a conversion of the property, and as to a conversion of the property the court instructed the jury that if they should find that the defendant, Beals, did not get a title to the cattle in question by his purchase of Thomas, the act of Beals in driving them away, and keeping and exercising dominion over them as his own property, constituted a conversion, and no demand by the plaintiff was necessary in order to perfect a right of action. We think the ruling of the county court upon this branch of the case was correct, and substantially in accordance with the rule laid down in Riford v. Montgomery, 7 Vt. 411; in Grant v. King, 14 Vt. 367; and in Deering v. Austin, 34 Vt. 330, from which we do not feel at liberty to depart. The rule that the -purchase of property under such circumstances, and holding possession as owner under such purchase, is-of itself a conversion of the property and subjects such purchaser to an action without demand or notice, though harsh when applied to an innocent purchaser, does not in general deprive him of the right, after the suit is commenced, to surrender the property taken, in satisfaction or mitigation of damages. It would seem to be a well settled rule in the English courts in actions of trover and trespass de bonis mportatis that when the taking was not wilful,'and the property is not materially injured, and is surrendered back to the real owner, the plaintiff will, on payment of the costs, be compelled to proceed at his [661]*661peril as to future costs. In Hart v. Skinner, 16 Vt. 138, Judge Redeieed in delivering the opinion of the court, after reviewing the English authorities, and conceding their correctness upon principle, says, “It is not very obvious, then, why the court should not have the same discretion here, in allowing or refusing costs, which is exercised by the courts in England. There it is every day’s practice to pay money into court (which had not been previously tendered) under a rule that the plaintiff accept the same and discontinue his suit or proceed at his peril as to costs. This sum paid into court is supposed always to cover the costs already accrued and a specific amount of debt or damage.” The reasons why the court in that case did not allow the defence were, 1st., no rule was seasonably moved for; 2nd, the conversion was wilful; and, 3rd, the property was essentially injured. The tendency of legislation in this State has been to afford all reasonable facilities for the payment of debt dr damages without costs of suit. An instance of such legislation is found in the relaxation of the common law rule as to the time of making a tender of the sum due upon contract. Yet cases frequently arise where the defendant never had an opportunity to make a tender, or for good cause omitted to make one within the time given by our statute. In such cases it might operate greatly to the prejudice of the defendant if he could not relieve himself by applying to the court and obtaining leave to pay the debt into court, together with the costs of the action up to that time. Our courts, upon equitable principles, have introduced the practice of allowing payment of the debt and costs already accrued in such cases to be made into court thereby placing the defendant, as to future costs, on the same ground as if he had seasonably made a tender of the same sum. I think the good sense of this practice is no less obvious in its application to some cases of torts, and it would seem upon principle that, in actions of trover and trespass de bonis asportatis when the taking is not wilful and the property is not essentially injured, the defendant should be allowed to surrender back the property and to pay the actual damage for the taking and detention of it, into court, together with the cost •of the action already accrued; and in case the plaintiff refused to accept the money paid into court, he must proceed at his peril, insomuch that if at the trial he is nonsuited or if the jury shall not give [662]*662him a sum exceeding the money paid into court, he will he obliged to pay the costs of the action. The numerous actions of trover and trespass da bonis asportatis growing out of the sale and transfer of personal property, where the vendor had no title, and where by his false or fraudulent representations, or by some indications of ownership, the vendee was induced to make the purchase, where there was no intentional wrong on the part of the purchaser, and no real dam.age done by him, require that he should be relieved from the rigor of the rule applicable to cases of wilful and malicious trespass. The rule allowing such surrender of the property and payment, in the discretion of the court, is founded in equity, which is “ the correction of that wherein the law (by reason of its universality) is deficient.” It goes upon the principle that when the defendant is ready and willing to pay and places within the reach of the plaintiff a sum of money equal to the actual debt or damage recoverable by law and the costs already accrued, the action ought not to be further prosecuted at the expense of the defendant. In this case it does not appear that there was such a wilful talcing of the property or that it was so injured that the defendant could not have surrendered it back to the plaintiff in satisfaction or mitigation of the damages after the suit was commenced. But the case shows that the defendant, after notice of the plaintiff’s title, without offering to return the cattle, sold them, consequently he has no just grounds of complaint on account of the want of notice before the suit was commenced.
2. It is insisted by the defendant’s counsel that the county court erred in not charging the jury in accordance with the defendant’s third request. Upon the evidence referred to in that request two grounds of defence were alleged: 1st, the authority of Thomas to sell the cattle to Beals, and, 2nd, that the plaintiff, by his declarations and acts, was estopped from setting up title to the property in question. The defendant’s testimony tended to show that sundry persons at different times, while Thomas was in possession of and carrying on the farm, went there for the purpose of purchasing cattle, butter, cheese and other products of the farm, and that the plaintiff told them in substance that Thomas did the trading, and that any trade they might make with him would be satisfactory to the plaintiff. And the defendant’s testimony also tended to show that Thomas [663]*663had authority from the plaintiff to sell or otherwise dispose bf the-cattle ; but the defendant gave no evidence tending to show tjiat he had any knowledge, before he made the purchase, of the mainer of dealing between the plaintiff and Thomas and third person! while Thomas was in possession of the plaintiff’s farm; The defendant conceded on trial that by the arrangement as to farm and s|)ck the title to the cattle sued for was in the plaintiff, and that under that contract and arrangement Thomas had no authority to sell tlpm, but it was claimed by the defendant that Thomas subsequently ibtained permission of the plaintiff to sell or otherwise dispose of thepattle in question. Upon the question of authority in Thomas to Sell the cattle, it affirmatively appears that all the evidence as to themanner in which Thomas conducted the business as tenant, and nanaged and dealt with the property and its products, and as to the pjaintiff’s knowledge of the manner in which Thomas conducted the imsiness, managed and dealt with the property, and as to the plaintiff’s parti- ' cipation in the same, was fully and fairly submitted to the jury, with such instructions in relation to its effect as were entirely satisfactory to both parties. The defendant’s request assumes, as matter of law,, that, upon the proof of certain declarations by the plaintiff as to the authority of Thomas, the jury would be at liberty to find that Thomas had a right to sell the cattle to the defendant, without regard to the question whether Beals was or was not cognizaat of the facts testified to by the witnesses at the time he made the purchase. This would be true if the jury found that Thomas was authorized by the plaintiff to sell the cattle, but when confined t.o mere declarations of such right in Thomas, and it appeared that Beals had no knowledge of such declarations at the time he made the purchase, it would not be true, as matter of law, that he could take advantage of them. Bearing more directly upon the latter point the court told the jury that if, from the manner in which Thomas conducted the business and managed and dealt with the stock and the products of the farm, with the knowledge of the plaintiff, persons having knowledge of the same would, in good faith, be reasonably led to believe that-Thomas was authorized to sell the stock, a sale to such persons by Thomas would give them a valid title as against the plaintiff, and. [664]*664that tlis would be true of Beals. But as there was no evidence in the caie tending to show that Beals, at the time of the purchase, had any krowledge of the manner in which the business had'been conductedor of the manner in which the stock and products of the farm had bem dealt with by Thomas, or tending to áhow that Beals had knowlelge of any declaration of the plaintiff as to the authority of Thomas to sell the property, it was the duty of the court to instruct and tiny did instruct the jury that Beals could not avail himself of such gnund of defence. We think the charge in this respect was correct md as favorable for the defendant as he was entitled to. To hold thct the declarations of the plaintiff, under such circumstances, operate as an estoppel in favor of a person having no knowledge of them at the time of the alleged purchase, and consequently in no way misled or affected by them, would extend the doctrine of estopel in pais jeyond what it could be sustained by authority or upon principle.
3. It is urged by the defendant that the county court improperly admitted evidence of the declarations of Thomas in relation to the ownership ‘ of the property. The declarations or admissions of Thomas, admitted in evidence, were made by him while in possession of the farm and stock, and they relate only to the relation Thomas sustained to the property in question. Beals claimed to have derived his title from Thomas, and, in respect to the sale, Thomas and Bedls stood in the relation of vendor and vendee of the property. The evidence was admissible upon the question of title as against Thomas, and, upon the same principle, it was admissible as against his vendee, Beals. The admissions came from a privy in estate, in contemplation of law ; they came from the party himself and are not hearsay evidence. It appears that the court limited the evidence of Thomas’ admissions to the legitimate purpose for which it was admissible, and for the purpose of precluding any improper use or effect of it by the jury, the court told the jury that the testimony as to Thomas’ sayings while he was in possession of the property under his contract and arrangement with the plaintiff, bore only on the question of the relation that Thomas sustained to the property, whether that of owner as tenant in common, or that which the plain[665]*665tiff claimed was created by the contract between them in respect to the stock, viz., that it was to be and remain the property of the plaintiff until Thomas should have paid for one-half of it. Under so lucid a charge we think it is not probable that the jury made any improper use of the testimony, or that they were influenced by it upon a point to which the testimony was not applicable.
The judgment is affirmed.