#### Burton W. Dowd v. Flora Wadsworth.

From Moore.

Where a writ was to answet “ A, guardian of R,” the words “ guardian of D,” was held to be but matter of description, and the suit to be the suit of A, not of the ward ; evidence of the ward’s title is therefore irrelevant.

Possession accompanied with a claim of title, is a conversion. But a mere bailee who ehúlts no title ■ 'tner ror iñmself or his bailor, and upon a demand o- noss.-sf , :.>,ks tune to surrender the property to his bailor, is not guilty of a conversion.

One who is in possession of the property of another, is bound to surrender it upon the demand of the owner ; hut if he does not know the applicant to be the owner, he has a right to reasonable proof of that fact.

Principles of law in r--spent to what constitutes a conversion, discussed by Uta'nuiisox, Chief-Justice.

Trover for a horse, brought by the Plaintiff in his own name, “as guardian of Daniel Blue”

The cause was fried on the plea of not gully, before his honor Judge Danied, on the last circuit.-

The Plaintiff proved a gift of the horse to his ward Daniel Blue, by his gr&ndhtiher John Wadsworth, the *131late husband of the Defendant, and that he had by his will, bequeathed all his personal 'state to the Defendant during' her life. The executor o. John h a Isivovth lived at a distance from the Defendant, and in another county. All the property of the estate, together with the horse in dispute, was left by him on the plantation where the testator died, where aiso the Defendant continued to reside— she contending, that the horse had never been given to Blue, by the testator; but that it continued to be part of his estate, it was in proof, that after the death of her husband, the Defendant used the horse about the plantation — that she lent it to one of the witnesses to go to Fayetteville, and also to another person to go a short journey.

June, 1829.

The Plaintiff demanded the horse of the Defendant for his ward} she answered that it. was not in her possession, but in that of the agent of the executor, who lived some miles off — that she should do nothing until she saw the executor, and that she did uoi know that she would give it up at any rate. There was no proof of the Plaintiff’s appointment as guardian.

His Honor instructed the Jury, that if they were satisfied that tiie Plaintiff had title to the property, their next enquiry should be the fact of a conversion by the Defendant. That on this point, if was not necessary for the Plaintiff to prove a demand by him, and a refusal by the Defendant, when the horse was in her possession, that it was sufficient if he proved to their satisfaction, that the Defendant had, since the death of her husband, exercised acts of ownership over it inconsistent with his title.

Under this charge, a verdict was returned for the Plaintiff, and the Defendant appealed.

Muffin, for the Defendant,

objected 1st, that the writ was to answer i( Burton IV. Dowd, guardian of Daniel *132 Blue,” which made Dowd the Plaintiff, when the property was shown to be in Blue, his ward.

2d. That there was no conversion by the Defendant. Blue being an infant, the property coming to the possession of the Defendant by leave of the executor of the donor, and there being no proof that the Plaintiff had been regularly appointed bis guardian, the Defendant had as good a right to retain the custody of the property, as the Plaintiff had to demand it.

He contended, that where property comes to the possession of any one, by finding or by a bailment, a demand must be made by one having an authority to make it, in order to prove a conversion.

That the actual possession of the horse by another, when the demand was made, and the qualified terms in which the Defendant spoke, showed there was no conversion. It only disclosed her inability to deliver it up, and her want of authority, but asserted no right of property in herself.

That Blue being an infant, the Defendant had a right to a reasonable use of the horse for the keeping of it, and that the. very fact of a delivery to any, but one who was a regular guardian, would have been such a disposition of the property as amounted to a conversion — that no misuser was proved, which he admitted would have been a conversion. In support of these principles, he referred to Bull.N. P. 44, and the opinion of Coke, Chief-Justice, in 2 Bulst. 312, cited 3 Selw. JV*. P. 1151.

lie contended, that it was plain on the whole case, that the Defendant set up no right of property in herself, that she used the horse by permission of the executor, between whom and Blue, she did not intend to interfere. That she got the horse from the executor and returned it to him — that she exercised no acts of ownership inconsistent with the rights of Blue, but the horse being in her possession, she merely refused to decide between the right of the infant and the executor.

No Counsel appeared for the Plaintiff.

*133Henderson, Chief-Justice.

I am sonu ivhat at a loss to say what this Court, as a revising Court, should do , . .... ‘ , . as to the error in bringing the suit. No doubt it was intended to he the infant’s suit — it was so considered throughout. The trial was upon the infant’s title, yet it is the suit of the guardian — it is brought by him in his own name — for although he describes himself as guardian of the infant, that is but matter of description, and does not make it the suit of the infant. The Court below, Í think, should have rejected the whole of the evidence, as irrelevant $ for it did not tend to establish title in the Plaintiff, but in his ward. I do not know what else we can do, hut to grant a new trial. The Superior Court may, under our act for the amendment of the law7, and particularly under our construction of that act, permit an amendment upon terms, if it should he thought proper. '

The Counsel for the Defendant made a very ingenious argument, to show7 that there was no conversion ; but lie has not satisfied rne that there was none. It is evident the Defendant claimed a life estate in the horse, under the will of her husband, to which she was entitled, if there was no valid gift to the infant.

The executor left the horse with the other property on the plantation, where the widow continued to reside, and she no doubt exercised acts of control and ownership over it — for it appears that she lent him to one of (he witnesses to go to Fayetteville, and once to another person to go a short journey. That when demanded, she said the horse was not there that he was in the possession of the agent of the executor, who lived three or four miles off. She said she would do nothing until she could see the executor, and that she did not know that she would give up the horse at any rate. This is very unlike the conduct of tlie possessor of a chattel, who, not knowing the owner, claims no property in it, but is willing to give it up, so that he is exonerated. On the contrary, it is very muck *134like a claim, especially when coupled with her acts of ownership and her concluding’remark, that she did not know that, she should give him up at any rate, which seems like disclaiming the authority of the executor. All this looks much like a claim for herself, and when coupled with her interest under the will, shows that she held adversely.

The general rule is, that any person who is in the possession of another’s property is bound to surrender it upon demand. The exceptions are, where a person really and bona fide does not know that the applicant is the owner. By which, I do not mean that he cannot judge whether his title is good or bad, as it were, upon the law or intricate facts of the case — as if a man finds property, before the finder can be put in the wrong, there must he some grounds to believe that the applicant is tho owner ; not full proof, but something that would satisfy a reasonable man. JgjMfjyjp neighbor bails property to another, if it is demanded of the DaIíeeT"and he, thinking it is the bailor’s, requests a delay until he can see the bailor and return it to him, this will not be evidence of a conversion/All these exceptions are founded in good sense, and it must appear on the transaction that the bailee neither claims possession for himself, nor even for his bailor, but only that he wished a delay to enable him to return it to the bailor, that the latter might exercise his free will, and not condemn the bailee for not doing so, and that the bailee might thus avoid a lawsuit. If this Defendant held for the executor, it appears her motives were different from these. I rather suppose she considered that he held title for her, and that she held possession for herself — that she was mistress, and could direct and act as she pleased; for it seems that when matters came to an extremity, she would follow her own, and not his will. When one is in possession under a bailment, by holding for the bailor, and refusing to deliver the thing hailed upon demand, he identifies his possession with the title of the bailor $ and *135if that ir ’ ad, the possession is a ’tivcrsi.sand he be-romes sonally chargeable. ;uink • erefore the Judge was right in the instructions given, and in the manner in which he left the case to the Jury.

As to the demand made by a person who does not show that lie was guardian, or authorised to make it, I perfectly concur with the Counsel, that the Defendant might well refuse to deliver up the horse on such a demand \ but this should have been done on that ground, and not on the claim of right on her part: it is the claim of right which gives to her possession an adverse character.

I think the Defendant has no pretence to shelter herself under the bailment from the executor. For she identified herself with him, and if his title is bad, her possession is wrongful. But the judgment must be reversed, and a new trial granted for the cause first mentioned.

Per Curiam. — Let the judgment below be reversed, and a new trial granted.