When the plaintiff relies upon demand and refusal as independent and basic evidence of conversion, it must appear that at the time of the demand and refusal the defendant had the control of the article so as to be able to comply with the demand; and the burden of proving all this is upon the plaintiff. Lord Ellenborough in Smith v. Young, 1 Camp. 439, 441. 2 Greenl. on Ev. 644, and cases cited. See also Johnson v. Couillard, 4 Allen, 446; Gilmore v. Newton, 9 Allen, 171. The fifth instruction should have been given.
We are therefore compelled to sustain the exceptions, even if there was evidence which would have warranted a finding that the plaintiff had sustained the burden. The general finding for the plaintiff so far as dependent upon this branch of the case may have turned upon the erroneous theory apparently adopted at the trial as to where the burden of proof lay.
Exceptions sustained.