| Ark. | Jul 15, 1840
delivered the opinion of the court:
One of the points in this case is whether there was sufficient evidence of a conversion to justify the verdict. The principle is well settled, that although the taking might have been lawful, yet if the defendant took upon himself the right and assumed the control of the property, whether it came to his possession by finding or otherwise, it is sufficient evidence of conversion, without a previous demand and refusal. Buller's N. P. 44. The declarations and acts of the defendant below united, form an assumption of control over the plaintiff’s property. The taking possession and assuming to dispose of the four blocks, as he evidently did do in hiring Dent to assist him in removing a part of the plank, and afterwards selling to him his interest in the remainder, reserving to himself the portion carried out, Js certainly a conversion.
In the case of Kent vs. Welsh, 7 J. R. 257, the court decided that it was neither necessary that there should be a manual taking of the thing in question by the defendants, or that he should have applied it to his own use. But that if he exercised a control over it in exclusion of, or in defiance of, the plaintiff’s right, it.is in law a conversion, be it for his own or another’s use. The same principle is maintained and carried out in the case of Murray et al. vs. Burling, 10 J. R. 172; and in 2 Starkie, 147.
The plaintiff in error however contends that, in any event, he is only liable for the 130 plank which he agreed to take for his part of the raft. We see no difficulty in this objection, for if there was a conversion of the 130 plank, it was but a continuance of that control which he had assumed, in the first instance, to exercise over the whole property. He hired Dént to assist him in doing what? In taking out and placing it in such a position as to dispose of it with more facility. These facts were all before the jury, and having been passed upon by them, the verdict ought not to be disturbed on that ground.
The other witness proves that the property was not lost, that the four blocks were left aground; that he visited them the next day, but that the river had fallen too much to permit him to remove them. That in May following, on the first rise of the river, he returned, when he discovered that the four blocks were gone, and that they would have remained at the place he left them if they had not been taken away. This evidence is conclusive that the property was not either lost or abandoned; and therefore the taking possession was no more a justification than the talking of any other property which was not at the time in the owner’s immediate possession or inclosure. The defendant knew that it was not his own property, and the jury correctly considered him as a wrong doer and trespasser from the beginning. If such be the facts, and these the conclusions to which the jury were brought by the evidence, he could not entrench himself behind the statutory provisions relating to property lost, wrecked, or adrift, and in a perishable condition upon the river, for no one of his acts evinced the slightest intention on his part to make the law his guide in the disposition of the property. On the contrary the whole of the evidence justifies the opinion that he intended to convert it to his own use, and that such intention was actually carried into execution.
There is no clearer principle laid down than that if an actual tortious taking be proved, it is not necessary to prove an actual demand, for the taking being unlawful is itself a conversion; so likewise if an actual conversion be proved, it is not necessary to prove a demand. The evidence shows how the property came to the hands of the defendant, and that there was not only a tortious taking, but an actual conversion by the defendant.
We discover no error in the refusal of the Circuit Court to give the instructions asked for. The judgment must therefore be affirmed with costs.