Fletcher v. Fletcher

7 N.H. 452 | Superior Court of New Hampshire | 1835

Richardson, C. J.,

delivered the opinion of the court.

In trover the conversion is the very gist of the action, and the question in this case is, whether the facts stated show a conversion ?

Where there is a tortious taking of goods, this is in law a conversion. But when the goods came lawfully into the hands of the defendant, as by finding, or by delivery of the owner, then in order to maintain trover, some tortious act subsequently done, and amounting to a conversion, must be shown.

In general, a demand of the goods by the plaintiff, and a refusal by the defendant to deliver them, is proof of a conversion.

But to this rule there are exceptions. Thus, where the refusal to deliver the goods on the demand may under the circumstances be considered only as the result of a reasonable hesitation in a doubtful matter, it is not evidence of a conversion. 5 N. H. R. 225, Robinson vs. Burleigh.

We are of opinion that this case comes within the exception ; and, that the refusal of the defendant to deliver the notes, was not, under the circumstances, evidence of a conversion.

It is true, that the notes in the hands of the defendant could not be considered as money, goods, chattels, rights or credits, within the meaning of the act directing the proceed-togs against'.the trustees of debtors. 5 N. H. R. 193, The N. H. I. F. Company vs. Platt. But whether they could be so considered was a question which he was not bound to. decide at his peril. And we are of opinion that he had a right to retain the notes until that question was .settled by the proper tribunal, or an indemnity tendered to him to save him harmless from the trustee, process. It was so held in the case just cited from 5 N. H. R. 193.

We are,, therefore, of opinion that there must be

Judgment for the defendant.