Emory v. Jenkinson

1 Tapp. Rep. 254

Opinion

President.

A demand and refusal, is evidence from which a jury may infer a conversion, in some cases; but it is not the only evidence, to warrant such inference. When the property has been lost, it would be useless for tbe party to demand tbe specific chattel; a demand of satisfaction, in such case seems sufficient — 1 Esp. N. P. Rep. 32; the case of Le Place vs. Aupois, 1 Johns, cas. 406, cited by the defendant’s counsel, shews that even a demand of satisfaction, or payment for the property, need not be made; where, as in that case, the defendant has admitted that he had the goods in question, and that he had lost them.

But the action of Trover cannot be sustained without proof of a positive tortious act done by the defendant; mere negligence or nonfeasance, is not sufficient. The evidence in this case, did not charge the defendant with any tortious act; it was urged, indeed, that here might have been a tortious conversion of the horse, for ought appeared in evidence; the evidence will not authorize such conjecture. Whether the defendant put the horse to pasture at the request of the plaintiff, and so became a mere bailee for hire, or whether he put him 'there without the consent of the plaintiff, would make a difference only in the extent of his liability; as, in the first case, he would be bound to ordinary care and diligence only; and in the latter would be answerable for .all but the act of God and the enemies of the state, as an innkeeper; but in both would be chargeable for negligence only; so that, if the verdict of the jury is warranted by the evidence, it is on the ground of negligenee, it is sustainable; and the result of that view of the .case is, that the evidence did not support this form of action. New trial granted.