.1849.

WAKLEY

v.

HEALEY.

innuendo, on that supposition, would be proper: and thus there would be no doubt that the imputation was, that the plaintiff, in his vocation of editor, was a libeller; and so no question as to the publication being actionable.

END OF HILARY VACATION.

ARGUED AND DETERMINED

IN THE

COURT OF COMMON PLEAS,

IN

Easter Term,

IN THE

TWELFTH YEAR OF THE REIGN OF VICTORIA.

The judges who usually sat in banco in this term, were

In the course of the last vacation, Mr. Serjeant Kinglake received a patent of precedence, to take rank next after Mr. Rolt.

The following gentlemen were also appointed Her
Majesty's counsel learned in the law :-

Edward John Lloyd, Esq., of Lincoln's Inn.
John Greenwood, Esq., of the Middle Temple.
Richard Malins, Esq., of the Inner Temple.
Frederick Calvert, Esq., of the Inner Temple.
Henry Singer Keating, Esq., of the Inner Temple.
Roundell Palmer, Esq., of Lincoln's Inn.

1849.

1849.

April 16.

A., the indor

ser of a dishonoured bill, having paid the amount to B., the holder, demands the

TOWNE v. Lewis.

ROVER, for a bill of exchange. Pleas, not guilty, and not possessed.

The cause was tried before Wilde, C. J., at the sittings at Westminster after the last term. The facts were as follows: The plaintiff, as indorser of a bill of exchange, had been sued by the defendant in the bill from B., Lord Mayor's court, and had paid the amount under an order of that court. He afterwards sent a person

who refers

him to his

(B.'s) attorney. A. refusing to go to the attor

ney, B. says,

"Then call

on Saturday,

and in the mean time I will

get it for you." A. calls on Saturday,

but does not obtain the bill:- This is not evidence of a conversion.

to the defendant, to demand the bill, when the defendant told him it was not in his possession, and referred him to his attorney, to whom he had handed it for the purpose of suing upon it. The plaintiff's messenger declining to go to the attorney, the defendant said: "Then, call on Saturday, and in the meantime I will get it for you." The messenger accordingly called again, on the following Saturday, but did not obtain the bill: whereupon the plaintiff immediately brought this action.

His lordship left it to the jury to say whether, when the demand was made, the defendant meant to dispute the plaintiff's right to the bill, or whether he really meant to send it to him when he could obtain it; at the same time intimating a pretty strong opinion that there was no conversion.

A verdict having been found for the defendant,

Humfrey now moved for a new trial, on the ground of misdirection, and that the verdict was against evi

dence. The plaintiff was unquestionably entitled to the possession of the bill, and the defendant's neglect to restore it amounted to a conversion. [Cresswell, J. Did the defendant convert the bill, by putting it into the hands of his attorney?] Certainly not: he had at that time dominion over it, and a right to sue upon it. [Cresswell, J. Then, was he guilty of a conversion, by not immediately taking it out of his attorney's hands when his claim was satisfied?] Having fixed his own time for the redelivery of the bill, his neglect to do so was evidence of a conversion. The question which ought to have been left to the jury, is, whether the defendant prevented or delayed the plaintiff in obtaining possession of his property, without any justifiable excuse. [Wilde, C. J. Can that be said to amount to a conversion by the defendant, which is neither an assertion of title in himself, nor a denial of the title of the plaintiff, nor evidences an intention on the defendant's part to withhold the chattel from him?] In M'Combie v. Davies (a), it was held, that, taking the property of another by assignment from one who had no authority to dispose of it; as, taking an assignment of tobacco in the King's warehouse, by way of pledge, from a broker who had purchased it there in his own name for his principal, and refusing to deliver it to the principal, after notice and demand by him,-none other than the person in whose name it is warehoused being able to take it out,-is a conversion. [Wilde, C. J. That was, in effect, a denial of title.] In Catterall v. Kenyon (b), goods of the plaintiff had been taken in execution upon process against the goods of B., and placed upon the premises of the defendant, who was an innkeeper; upon a demand of them by the plaintiff,

1849.

TOWNE

v.

LEWIS.

1849.

TOWNE

v.

LEWIS

in the absence of the defendant, the wife of the defendant said that she would consult the attorney who had issued the execution, and, after having done so, refused, saying that she was not to deliver them up, and that he would save her harmless: and it was held that this was sufficient evidence of conversion. Lord Denman there said: "The case of Verrall v. Robinson (a) induced us to grant the rule; but I think that case does not apply: in that case, Lord Abinger, and Alderson, B., considered that the chaise was in the custody of the law, and that the party with whom it was placed at livery was not at liberty to deliver it up after it had been attached by process out of the sheriff's court; after the attachment, the holder was passive, and no more than, as it were, an officer of the court, and was not justified in parting with it. Here, the goods of one party are by mistake taken by virtue of process against another, and, being placed on the premises of the defendant, the wife takes upon herself to inquire into the ownership of them, and, after inquiry, refuses to give them up. I think that the party's so depriving the owner of the possession of his goods, is sufficient evidence of a conversion."

At all events, the plaintiff is entitled to a verdict on the issue upon not possessed.

WILDE, C. J. As to the issue last adverted to,

(a) 2 C. M. & R. 495. In an action of trover for a chaise, it appeared that one B. had hired the chaise in question from the plaintiff, and had placed it at livery with the defendant, and that, whilst it was in the defendant's possession, in the city of London, it was attached by process out of the

sheriff's court: the plaintiff demanded the chaise, but the defendant, alleging that it had been attached, refused to deliver it: it was held that there was no evidence of a conversion by the defendant, the chaise being, at the time of the demand, in the custody of the law, and not of the defendant.