Woodworth, J.
The liability of the defendants, if any, arises under the second agreement to deliver the property levied on. That extends to such part as then remained in their possession.
It is contended that, as the Sheriff never re-possessed him- ■ s'elf of the goods, he could not deliver them as the consider--• ation for the last agreement.
When the plaintiff called the second time, the defendants mpst be considered as having the custody of all the-goods, except a clock, bureau and table, which, the case states, were taken away from the premises by James, on the ‘ 20 th September. The Sheriff made a levy previously; they were legally in his possession; he might have removed the goods, but did not. The consideration for the promise, is his suffering them to remain in the defendants’ hands.-
It is also urged, that the plaintiff has mistaken his actionift bringing trover ; that assumpsit was the proper remedy.
That assumpsit may be maintained, Í am not disposed to - dtfny. If, however, the plaintiff can prove all that is neces:* [329]*329'•¡try to support trover, he may well adopt that form of action. He had his election. Thus, where goods are deliv"ered by way of pledge, after the payment of the money, or a tender and refusal, the pawnor may either bring án action of assumpsit, and declare that the defendant promised tó return the goods, upon request, or trover, the property being vested in him by the tender. (Yelvefton, 178; Buller's N. P. 72.) So, also, where goods aré delivered to a carrier j the plaintiff may either bring trover, or an action on the case, on the custom. If the former, he incurs this risk; that the defendant may give in evidence, that the goods were stolen ; and, if hé does, then he is guilty of no conversion, though he would be liable in án action on the custom. (2 Salk. 655.) In the present case, by electing to bring trover, the, plaintiff must prove á conversion. If he had brought assumpsit, it would be immaterial whether there was a conversion or not. There is nothing in the case of Serjeant v. Blunt, (16 John. 74) to support the objection. There trover was brought for selling the plaintiff’s goods at a less price than that fixed on. The action failed, because the defendant, having authority to sell, the sélling was not a conversion, but á breach of duty. It did not turn on the question, whether the plaintiff could waive the assumpsit. The only remaining enquiry then, is, whether the plaintiff has proved a conversion agáinst both the defendants ? for, without this, the verdict Cannot be sustained. If a conversion is proved against one only, the joinder of the other, in an action in form, ex delicto, is no objection ; for one may bé acquitted, and a verdict taken against the other. (1 Ch. Pl. 74.) Such ought to have been the finding here. If a conversion, by both, is not proved, the verdict must be set aside, unless modified by assent of parties. In Nicol v. Glennie and others, (1 M. & S. 588) a joint conversion against all not being proved., it was held that the evidence did not warrant the finding, and a new trial was granted.
With respect to Eager¡ there is proof of an actual conversion ; for the goods were taken by James, in his presence, and with his assent. This was assuming the right to dispose ■of the property1, and exercising a dominion ever it, to the eje - [330]*330elusion of the pia'miifps right. (Bristol v. Burt, 7 John 254.) Wherever'a person, entrusted with the goods of an» other, puts them into the hands of a third person, without orders, it is a conversion. (Syeds v. Hay, 4 D. & E. 264. 1 Ch. Pl. 153.) It does not appear that Bull acted in concert with' his eo-dfefendant, 'in ,delivering the property to James, or that he had any knowledge Of the fact. The demand. made by the plaintiff will not sustain the verdict» The law is well settled, that Where the defendant comes to the possession of the chattel; in a lawful way, and an actual conversion is, not proved, evidence of a demand and refusal is, generally, prima facie, evidence of a conversion. (3 Bac. Trover, G. Bull. N. P. 4.) Had it not appeared that, previous to the demand, the property Was taken away, the evidence Would have been sufficient; it wtiuld, in that case, be considered, that the property, being in possession of the defendants, was unlawfully withheld. (6 Bac. 606, Trover, G.) A demand, and non-compliance, are, prima facie, evidence of a conversion, and •will induce a jury to find it; unless the defendant adduce evidence to negative the presumption. (1 Chitty, 155. Buller, 44. Peake, 298. 2 Saund. [47 e] n. 1.)
But it is competent for the defendants to give, in evidence, every thing Which tends to prove there was no conversion. (6 Bac. 707. Buller, 48.) In this, I think, they have succeeded, so far as respects the defendant, Butt. It is not shown that he ever exercised any control over the property. It was left in Ms possession; and, for aught that appears, was taken without Ms knowledge or consent. The law will not, without evidence, indulge a presumption that he did an unlawful act. .
Trover cannot be supported for a mere non-performance. Where the goods are lost, by negligence, the remedy must be case or assumpsit» (2 Saund. [47 e] n. 1. 1 Ch. Pl. 150.)
If it appear that the chattel was lost, by the defendant, or that he was robbed before it was demanded, evidence, of" a; refusal is not evidence of a conversion. (6 Bac. 706.)
[331]*331The property in question was left with the defendants, for safe keeping. In such case, it is held, they are not answerable to the person in whom the general property is, for the conversion by a stranger, unless the conversion be owing to some gross neglect. (2 Lord Raym. 913,914, 915. 6 Bac. 686.)
Without, however, considering the extent of the liability, had the action been on the agreement fo deliver, it is very clear that no conversion, by Bull, is proved. That being • indispensable, in this form of action, to warrant the finding, the verdict must be set aside, and a new trial granted, with costs, to abide the event.
The objection to the amount of damages is not well founded. As I understand the case, the verdict is for the value of the goods taken by James, after the defendants bécame a second time responsible.
Sutherland, J.
The principal questions arising upon this case, are two. 1. Whether the undertaking of the defendants is one upon which they can be charged at all: and, 2. Whether, admitting them to be liable, the action should not have been assumpsit, instead of trover.
The case states that, on the 21st of September, three days after the first undertaking of the defendants had expired, the plaintiff, by his deputy, went to the house of Bull, where all the property in question was, (except a clock, a bureau, and a table, which had been taken away by James)
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Woodworth, J.
The liability of the defendants, if any, arises under the second agreement to deliver the property levied on. That extends to such part as then remained in their possession.
It is contended that, as the Sheriff never re-possessed him- ■ s'elf of the goods, he could not deliver them as the consider--• ation for the last agreement.
When the plaintiff called the second time, the defendants mpst be considered as having the custody of all the-goods, except a clock, bureau and table, which, the case states, were taken away from the premises by James, on the ‘ 20 th September. The Sheriff made a levy previously; they were legally in his possession; he might have removed the goods, but did not. The consideration for the promise, is his suffering them to remain in the defendants’ hands.-
It is also urged, that the plaintiff has mistaken his actionift bringing trover ; that assumpsit was the proper remedy.
That assumpsit may be maintained, Í am not disposed to - dtfny. If, however, the plaintiff can prove all that is neces:* [329]*329'•¡try to support trover, he may well adopt that form of action. He had his election. Thus, where goods are deliv"ered by way of pledge, after the payment of the money, or a tender and refusal, the pawnor may either bring án action of assumpsit, and declare that the defendant promised tó return the goods, upon request, or trover, the property being vested in him by the tender. (Yelvefton, 178; Buller's N. P. 72.) So, also, where goods aré delivered to a carrier j the plaintiff may either bring trover, or an action on the case, on the custom. If the former, he incurs this risk; that the defendant may give in evidence, that the goods were stolen ; and, if hé does, then he is guilty of no conversion, though he would be liable in án action on the custom. (2 Salk. 655.) In the present case, by electing to bring trover, the, plaintiff must prove á conversion. If he had brought assumpsit, it would be immaterial whether there was a conversion or not. There is nothing in the case of Serjeant v. Blunt, (16 John. 74) to support the objection. There trover was brought for selling the plaintiff’s goods at a less price than that fixed on. The action failed, because the defendant, having authority to sell, the sélling was not a conversion, but á breach of duty. It did not turn on the question, whether the plaintiff could waive the assumpsit. The only remaining enquiry then, is, whether the plaintiff has proved a conversion agáinst both the defendants ? for, without this, the verdict Cannot be sustained. If a conversion is proved against one only, the joinder of the other, in an action in form, ex delicto, is no objection ; for one may bé acquitted, and a verdict taken against the other. (1 Ch. Pl. 74.) Such ought to have been the finding here. If a conversion, by both, is not proved, the verdict must be set aside, unless modified by assent of parties. In Nicol v. Glennie and others, (1 M. & S. 588) a joint conversion against all not being proved., it was held that the evidence did not warrant the finding, and a new trial was granted.
With respect to Eager¡ there is proof of an actual conversion ; for the goods were taken by James, in his presence, and with his assent. This was assuming the right to dispose ■of the property1, and exercising a dominion ever it, to the eje - [330]*330elusion of the pia'miifps right. (Bristol v. Burt, 7 John 254.) Wherever'a person, entrusted with the goods of an» other, puts them into the hands of a third person, without orders, it is a conversion. (Syeds v. Hay, 4 D. & E. 264. 1 Ch. Pl. 153.) It does not appear that Bull acted in concert with' his eo-dfefendant, 'in ,delivering the property to James, or that he had any knowledge Of the fact. The demand. made by the plaintiff will not sustain the verdict» The law is well settled, that Where the defendant comes to the possession of the chattel; in a lawful way, and an actual conversion is, not proved, evidence of a demand and refusal is, generally, prima facie, evidence of a conversion. (3 Bac. Trover, G. Bull. N. P. 4.) Had it not appeared that, previous to the demand, the property Was taken away, the evidence Would have been sufficient; it wtiuld, in that case, be considered, that the property, being in possession of the defendants, was unlawfully withheld. (6 Bac. 606, Trover, G.) A demand, and non-compliance, are, prima facie, evidence of a conversion, and •will induce a jury to find it; unless the defendant adduce evidence to negative the presumption. (1 Chitty, 155. Buller, 44. Peake, 298. 2 Saund. [47 e] n. 1.)
But it is competent for the defendants to give, in evidence, every thing Which tends to prove there was no conversion. (6 Bac. 707. Buller, 48.) In this, I think, they have succeeded, so far as respects the defendant, Butt. It is not shown that he ever exercised any control over the property. It was left in Ms possession; and, for aught that appears, was taken without Ms knowledge or consent. The law will not, without evidence, indulge a presumption that he did an unlawful act. .
Trover cannot be supported for a mere non-performance. Where the goods are lost, by negligence, the remedy must be case or assumpsit» (2 Saund. [47 e] n. 1. 1 Ch. Pl. 150.)
If it appear that the chattel was lost, by the defendant, or that he was robbed before it was demanded, evidence, of" a; refusal is not evidence of a conversion. (6 Bac. 706.)
[331]*331The property in question was left with the defendants, for safe keeping. In such case, it is held, they are not answerable to the person in whom the general property is, for the conversion by a stranger, unless the conversion be owing to some gross neglect. (2 Lord Raym. 913,914, 915. 6 Bac. 686.)
Without, however, considering the extent of the liability, had the action been on the agreement fo deliver, it is very clear that no conversion, by Bull, is proved. That being • indispensable, in this form of action, to warrant the finding, the verdict must be set aside, and a new trial granted, with costs, to abide the event.
The objection to the amount of damages is not well founded. As I understand the case, the verdict is for the value of the goods taken by James, after the defendants bécame a second time responsible.
Sutherland, J.
The principal questions arising upon this case, are two. 1. Whether the undertaking of the defendants is one upon which they can be charged at all: and, 2. Whether, admitting them to be liable, the action should not have been assumpsit, instead of trover.
The case states that, on the 21st of September, three days after the first undertaking of the defendants had expired, the plaintiff, by his deputy, went to the house of Bull, where all the property in question was, (except a clock, a bureau, and a table, which had been taken away by James) for the purpose of recovering the articles which had been removed, and of taking them, together with the others, into his custody and possession ; that the defendants, after conferring together, at length concluded to become responsible again, for the forthcoming of the property. The inventory and original receipt were then shewn to them; and they agreed that said inventory and undertaking should remain as formerly, and that they would continue responsible : In consideration whereof, the plaintiff went away and left the property. All the articles upon the inventory, except those which had been taken by James, were then in the house and on the premises of Bull, in the presence and within the reach of [332]*332the parties, at the time of the arrangement. They werti not only in construction of law, but in fact, in the possession? of the plaintiff. He had a. legal right to protect that possession by force, or to remove the articles to. any other place. Being thus in possession, and having such rights, and intending to exercise them, the defendants, in consideration of being permitted to have the possession and use of the property, undertook to be responsible fon its forthcoming, on demand. No formal delivery of possession was necessary, from the plaintiff to the defendants. The property was before them, under their control, and so left by the plaintiff. This was a sufficient delivery. The possession of the property was a valuable and sufficient consideration, to support the promise of the defendants.
The promise not being in writing, forms no ground of objection to it. The statute of frauds has no application to the case. The defendants, therefore, are clearly responsible for the property.
2. Trover will well lie for its non-delivery- It is not questioned, that a Sheriff, after having levied upon goods and chattels, by virtue of a fi. fa. has a sufficient property in them to enable him to maintain trespass, or trover, against any person who takes them away and converts them. (2 Saund, [47 a] n. 1. Barker & Knapp v. Miller, 6 John. Rep. 195. Hotchkiss v. M’Vickar, 12 John. 403.)
The evidence of the conversion, by the defendants, as stated in the case, is conclusive. The plaintiff went to the house of Bull, to sell the property: he sold all he could find, and then presented the inventory and receipt to the defendants, and demanded the residue, which was not delivered. This demand and refusal were all that it was necessary for the plaintiff to show, in order to prove the conversion by the defendants.
The evidence of a conversion is sufficient, against both defendants. The goods were left upon the premises of Bull, in his immediate care. It is difficult to perceive how they could have been removed in the manner stated by the case, without his consent, connivance, or gross neglect. It is not enough, that there is no evidence of his agency in their removal. The demand and refusal are admitted to be, prima facie, evidence of a conversion, in Bull as well as Eager. Thus a case is made out against Bull. This is not repelled by the mere circumstance, that the goods were taken away by another, without its appearing that the removal was accompanied with such force or fraud as did not leave the goods perfectly within BulPs control. He gave no explanation at the time of the demand. He made no effort, nor even expressed a wish to see them restored, although they are admitted, by the case, to have been perfectly accessible. These circumstances, and the relation in which he stood, both to Eager and James, render it difficult to resist the conclusion, that he participated in their acts. To my mind, so far from affording a satisfactory reason for BlulPs refusing to deliver the goods, their removal, connected with other facts appearing in the case, tend rather to prove an actual conversion by both defendants. I am, accordingly, of opinion, that the plaintiff is entitled to a judgment upon the verdict.
Savage, Ch. J.
To maintain trover, the plaintiff must shew property in himself, general or special; and a conversion by the defendant. The special property acquired by the levy, is sufficient to maintain the action ; and the demand and refusal ar e,prima facie, evidence of a conversion. They are, however, but prima facie evidence, and it is contended, that from the whole case, no conversion appears. The plaintiff, being lawfully possessed of the property, on /the 9 th of September, delivered it to the defendants, to be re[334]*334delivered on demand. On the 18th, the plaintiff’s deputy-demanded the property ; and it was virtually returned to him. On the 20th, it became again the subject of negotiation ; and the defendants renewed their former contract and liability. James was permitted to take away the articles in question, on a claim of title in himself, and Eager received an indemnification from James, for this breach of trust. “ It is the breach of trust, or the abuse of such lawful possession, which constitutes the conversion.”(j) Again, “ if one man who is entrusted with the goods of another, put them into the hands of a third person, contrary to orders, it is a ppnversion.”(k) Indeed, in the case last cited, the Court sustained the action, where the defendant, being entrusted with the gopds, delivered them to a wharfinger for the plaintiff S-use. Here the case is stronger. James is permitted to take the goods, with the avowed intention of defeating the plaintiffs claim, |t is no answer, in a case of bailment, to say that the plaintiff has his remedy on the agreement, or that he might have gone and retaken the goods. He may also have trover. Bailment presents a familiar instance of the election of remedies.(l)
It is contended, that this case is not distinguishable froni Serjeant v. Blunt.(m) That was trover, ~or selling a chronometer at the price of 300 dollars, whereas the defendant was expressly instructed net to sell for less than 500 dollars. In that case, the defendant had an authority to dispose of the article in question, Not so here : The express contract of the defendants was, to deliver the goods to the plaintiff, or one of his deputies. It is evident, from the reasoning of the Chief Justice, in Sarjeantr. Blunt, that, had the defendant sold without any authority to sell, trover would have been the proper action. He virtually admits, that if the-selling had been tortious, trover would have lain against the purchaser ; but the selling was not tortious: And why was if not ? Because the defendant had authority to sell. How was it in this case ? The defendants had no authority- to de-liver the goods to any one but the plaintiff. There can be. no doubt that the act was tprtious ; and that an action might, have been sustained against James.
[335]*3351 am accordingly of opinion, that the form of action is right; and that a conversion is proved as to Eager. But I concur in the opinion, that a conversion is not proved against Bull; and a new trial must, for that reason, be granted.
New trial granted.
LPlace v. Au Poix, 1 John. Cas. 406. Durell v. Mosher, 8 John. Rep. 445. Murray v. Burling, 10 John, 172.