demand and the refusal must be absolute and unqualified to afford Chap. VI. evidence of a conversion (n). Thus the owner of a gun delivered it to A. to be sold for him, and A. delivered it to B. on trial, who kept it for some time, during which the gun was burst; the owner afterwards demanded the gun in the following terms, "I give you notice that the gun is my property, and I demand the same of you, and require you to deliver it up in the same plight, in which it was when delivered to you," it was held that such demand and refusal were not evidence of a conversion (o). So where the defendant had in his possession a boiler belonging to the plaintiff, who demanded it, and the defendant at first refused to restore it, but afterwards, before the issue of the writ, tendered it, there was held to be no evidence of a conversion (p). Where a chattel is demanded by the owner from a person who is in possession of it, he has no right to impose any conditions, such as the giving of a receipt, before complying with the request. Thus, where a firm of solicitors had some deeds in their possession belonging to a testator and refused to give them up to the executors without receiving their receipt, it was held that such conduct amounted to a conversion of the deeds, and that an action of trover would lie against the solicitors at the suit of the executors (q). Where the chattel, at the time of the demand, is in the actual or constructive custody of law, no action for a conversion will lie (r). A person who has a lien upon a chattel may refuse to deliver it Lion. up until his lien is satisfied, but a refusal grounded on a claim of right to deliver up the chattel on demand, is evidence of a conversion, though the defendant may have a lien upon it (s). Where a person has expended his labour and skill on goods delivered to him for that purpose, he has a lien at common law for his charge for the work; thus the farrier by whose skill a horse is cured of a disease, and the horsebreaker by whose skill he is rendered manageable, have liens on them in respect of their charges (t). So a coachmaker has a lien upon a carriage on which he has executed repairs (u), a fuller, upon cloth he has fulled (x), and a (n) Philpot v. Kelley, 3 A. & E. 106. (o) Rushworth v. Taylor, 3 Q. B. 699; 12 L. J. Q. B. 80. (p) Hayward v. Seaward, 1 M. & S. 459. (q) Cobbett v. Clutton, 2 C. & P. 471. (r) Verrall v. Robinson, 2 C. M. & R. 495; see Johnson v. Royal Mail Co., L. R. 3 C. P. 38; 37 L. J. C. P. 33; Pillott (s) Caunce v. Spanton, 7 M. & G. 903; (t) Scarfe v. Morgan, 4 M. & W. 270. 523. (x) Coombs v. Noad, 10 M. & W. 127. 2 Unintentional conversion. Chap. VI. warehouseman, on goods he has warehoused (y). By express agreement, or by usage of particular trades or professions, a lien may be created for the general balance of account between the parties; thus a banker has a general lien upon the securities of his customer (z); a solicitor, on the deeds and papers of his clients which have come into his hands in the course of his employment (a): a factor has a general lien upon all goods consigned to him as factor (b); and carriers by land, and shipowners have a lien for carriage and freight (c). A livery stable-keeper has no lien for the keep of a horse, because it is said the owner impliedly, if not expressly, stipulates for the possession when required (d), neither has an agister of cattle (e). An innkeeper in respect of his charges has a lien which extends to all goods which a guest brings with him, and which are received at the inn (ƒ). If a person detains goods under any claim of interest in himself, so as to deprive the person entitled to the possession of them of his dominion over them, it amounts to a conversion (g), and it is equally so where a man, without any intention to appropriate to his own use, does an unauthorized act which deprives another of his property permanently or for an indefinite time (h). Thus the plaintiffs sent defendant an invoice for barley, which stated that the barley was bought by the defendant of the plaintiffs through G. as broker, and also a delivery order, which made the barley deliverable to the order of the consignor or consignee. The defendant had not, in fact, ordered any barley of the plaintiffs. G. called on the defendant, who showed him the documents, and told him it was a mistake. G. said that it was so, and asked the defendant to indorse the order to him, for the purpose, as he said, of saving the expense of obtaining a fresh delivery order. The defendant indorsed the order to G., who possessed himself of the barley and disposed of it, and then absconded. It was held, in an action for the conversion of the (f) Threfall v. Borwick, L. R. 7 Q. B. 711; Sunbolf v. Alford, 3 M. & W. 248. See Calyc's Case, 8 Co. Rep. 32a; Mulliner v. Florence, 3 Q. B. D. 484. As to innkeeper's power of sale, see 41 & 42 Vict. c. 30. (g) Burroughes v. Bayne, 5 H. & N. 296; 29 L. J. Ex. 188. (h) Hiort v. Bott, L. R. 9 Ex. 86; 43 L. J. Ex. 81; see Hollins v. Fowler, L. R. 7 H. L. 757; 44 L. J. Q. B. 169. barley, that the defendant, having indorsed the order without any Chap. VI. occasion to do so, and without authority, was liable for the conversion (i). Where goods are delivered for an illegal purpose, the person delivering the goods may repudiate the illegal purpose at any time before it has been carried out, and recover back his goods (k). Any one who takes the property of another without his consent, by abuse of the process of law, is guilty of a conversion (1), and those who aid and assist him in executing such process may also be held responsible (m). A sheriff who sells more goods than are sufficient to satisfy an Sheriff. execution, is liable for a conversion in respect of the excess (n). Where a landlord distrains and carries away goods, and after Landlord. selling enough to satisfy the rent in arrear, brings back the remainder to the premises demised, he is not guilty of a conversion of any part of the property, as he is only acting within his legal rights (o). A servant who is entrusted with goods by his master is Servant. justified in refusing to give them up to a claimant until he has received instructions from his master. Thus where goods, which had been saved from fire, were carried into a warehouse by the servants of an insurance company, of which the defendant, as one of such servants, kept the key, and on his being applied to by the owner to deliver them up to him, refused to do so without an order from the company, it was held that he was justified in so acting, and that such refusal did not amount to a conversion (p) ; if, however, after having received instructions from his master, he on demand, absolutely declines to give them up to the person entitled to the possession of them, he is guilty of a conversion (q). If a principal ratifies the unauthorised purchase by his agent of a chattel which the vendor had no right to sell, he is guilty of a conversion, although he had no knowledge of the circumstances which made the sale unlawful (r). Chap. VI. Bailee. Bailee for bire. A man cannot be made a bailee against his will, and, therefore, if goods are left upon his premises, without any consent on his part to take charge of them, he is not a bailee (s), and if in answer to a demand for the goods, he replies, "that he has nothing whatever to do with them," such answer is no evidence of a conversion (t). Where the owner of goods delivered them to a bailee to be kept for him, and the bailor by bill of sale, subsequently to the bailment, transferred all his interest to a third party, who demanded the goods of the bailee, it was held that a refusal to give up the goods until he had received direction from the bailor, was no evidence of conversion (u). When a chattel is deposited with a bailee by two, it is not in the power of one of the depositors to take the chattel out of the bailee's hands without the consent of the other (x). When the bailee has a bona fide doubt as to who is the true owner of the goods, he must be allowed a reasonable time for clearing up that doubt, before he can be rendered liable for a conversion (y). Where in the case of adverse claimants to chattels, an action is brought against a bailee, he can, under 1 & 2 Will. 4, c. 58, s. 1, protect himself by alleging that he has no interest in the chattels in question, and compelling the adverse claimants to interplead. If he does not adopt this course, but holds the goods for his bailor, he must stand or fall by the bailor's title (z). Where the bailor has no title at the time of the bailment, the bailee can have none; for the bailor can convey no better title than he has himself (a). A bailee of goods for hire, by selling them determines the bailment, and is guilty of a conversion, as also is the purchaser after demand and refusal, unless the goods were bought in "market overt" (b). Thus where the hirer of a piano sent it to an auctioneer to be sold, it was held that the auctioneer, who refused to deliver it up unless the expenses incurred were first paid, was liable for a conversion (c). (s) Hilberry v. Hatton, 33 L. J. Ex. 190. (x) Harper v. Godsell, L. R. 5 Q. B. (y) Vaughan v. Watt, 6 M. & W. 492; Pillot v. Wilkinson, 3 H. & C. 345; 34 L. J. Ex. 22. (2) Per Ld. Tenterden, Wilson v. Anderson, 1 B. & Ad. 456. (a) Batut v. Hartley, L. R. 7 Q. B. 594; 41 L. J. Q. B. 273; Biddle v. Bond, 6 B. & S. 225; 34 L. J. Q. B. 137. (b) Cooper v. Wilomatt, 1 C. B. 672; 14 L. J. C. P. 219; Bryant v. Wardell, 2 Ex. 479. (c) Loeschman v. Machin, 2 Stark, 311. Factors Acts. c. 39. At common law it was held that an agent authorized to sell Chap. VI. goods could not, although the apparent owner thereof by permission of his principal, pledge the same by delivering to a pawnee, either the goods themselves, or any document of title relating thereto. This state of the law in modern times, working great hardship and impeding mercantile transactions, several statutes (d) were enacted having reference to the subject (e). The effect of 5 & 6 Vict. c. 39, which recites 6 Geo. 4, c. 94, s. 4, 5 & 6 Vict. is that an agent who is intrusted with the possession either of goods or the documents of title to goods, may now deposit the same by way of pledge, lien or security, for advances made to himself; even although at the time of making the advances the pawnee knew that the pawner was only an agent. But the pawnee is not entitled to the benefit of this enactment, if the deposit was made on account of an antecedent debt; or if the advance was not made bonâ fide on the part of the pawnee; or if he had notice that the agent had no authority to pledge, or that, in so doing, he was acting malâ fide with reference to his principal (ƒ). title. Any bill of lading, India warrant, dock warrant, warehouse Documents of keeper's certificate, warrant or order for the delivery of goods, or any other document used in the ordinary course of business as proof of the possession of or control of the goods, or purporting to authorize, either by endorsement or delivery, the possessor of such document to transfer or receive goods thereby represented, is a document of title (g). Factors Act. The statute is meant to apply to those cases where one person Application of has given an apparent authority to another, and a third person has dealt with that other in the belief that the authority really existed (h). A merchant who has enabled his factor to raise money fraudulently can claim no redress against the party who has bona fide made the advance (i). The statute only applies to commercial agents, and therefore a To whom (d) The Factors Acts, 4 Geo. 4, c. 83, amended by 6 Geo. 4, c. 94; 5 & 6 Vict. c. 39; 40 & 41 Vict. c. 39. This last mentioned Act applies only to acts done and rights acquired after August 10, 1877. (e) Chitty on Contracts, p. 202, (7th ed.), see Smith's Mercantile Law, p. 129, (9th ed.) (f) 5 & 6 Vict. c. 39, s. 3. (h) Cole v. N. Western Bank, L. R. (i) Vickers v. Hatz, L. R. 2 H. L. (Sc.) 113; see Johnson v. Credit Lyonais Co., 3 C. P. D. (C. A.) 33. applies. |