1805. DOE ex dem. [538] Friday, Jupe 21st. Taking the property of another by as one who had no tors, &c. (a). The subject of the demise was merely a house in a town, with a small close; and she reserved too a power for her son, if he chose to take possession of it when he came of age. It appears, therefore, that she meant to keep as much dominion as possible over the property; and certainly she never meant to admit of any tenant of whom she did not approve. In order then to effectuate this her apparent intention, the court of Chancery would never have given W. Smith such a lease as might vest by operation of law in a person whom the lessor might not like as a tenant: and therefore the interest which he took must be considered as limited to the duration of Mrs. B.'s life and his own, and to his own occupation, unless she should approve of any other tenant during his life. Postea to the Plaintiff. (a) Vide the observations of Mr. Justice Buller in Roe v. Galliers, 2 Term Rep. 140, upon the case of Doe d. Lord Stanhope v. Skeggs, Tr. 21 Geo. 3, B. R. and vi. Roe d. Gregson v. Harrison, 2 Term Rep. 425. IN M'COMBIE against DAVIES. N trover for a certain quantity of tobacco, tried at the sittings after Michaelmas term, 1804, at Guildhall, besignment from fore Lord Ellenborough, C. J. the plaintiff was nonsuited, on the ground that there was no conversion by the defendant. A motion was made in Hilary term last to set aside the nonsignment of to- suit, and for a pew trial, and the opinion of the Court was reserved on the following facts: The plaintiff, a merchant ⚫ authority to dispose of it; as taking an as bacco in the king's ware pledge from a broker who had purchased it there in his ownname for his principal; and liver it to the principal after notice and de house by way of in Aberdeen, had employed one Coddan, an accredited broker in the tobacco trade, and a dealer in tobacco on his own account, to purchase for him some tobacco; which Coddan accordingly did; and the tobacco in question was refusing to de- part of it. But the defendant had no knowledge of the transaction between the plaintiff and Coddan. Coddan, the broker, bought the tobacco in his own name whilst it was in the king's warehouse, and had it transferred to himself in his own name in the king's warehouse, where it remained whose name it subject to the payment of the duties, as is usual, till the tobacco is actually delivered out of the warehouse. Coddan being in want of money, pledged the tobacco in his own. name with the defendant, for a sum of money, and transferred it into the defendant's name in the king's warehouse. mand by him; none other than the person in is warehoused being able to take it out, is a conversion. Afterwards Afterwards an application was made to the defendant, on the part of the plaintiff, for a delivery of the tobacco in question. The defendant answered, that he had advanced money to Coddan thereon; that he did not know M Combie, and could not transfer it but to Coddan's order, and not till his advances were paid On the 6th and 7th of November the following orders were addressed to the defendant:"B. A.-L237, 619, 597, 659, 508. "Mr. Davies, Please to deliver to the order of Mr. Thomas M'Combie the above five hogsheads of tobacco, his property. "Nov. 6, 1804. Yours, &c. J. R. Coddan." "Mr. Davies, I have to request you will immediately deliver to me five hogsheads of tobacco, marked and numbered, &c. (as before) the same being my property, placed in your hands by my broker, J. R. Coddan, whose order for their delivery I now hand you; and have to observe, that if you do not deliver them over to me, I shall be under the necessity of entering an action against you to enforce their delivery. "London, 7th Nov. 1804. Yours, &c. T. M'Combie.” The defendant received the said orders, but said that he should not deliver the tobacco until he was paid the money he had advanced on them to Coddan. The tobacco sull remains in the king's warehouse, the duties not yet being paid thereon, entered in the books at the king's warehouse in the name of the defendant. W. Harrison, for the plaintiff. The tobacco having been purchased by the broker for the plaintiff his principal, the plaintiff had the complete legal property and the right of possession of it; and the broker and no right afterwards to pledge it to the defendant; for this was a pledge and not a sale. The king had only a lien upon it for the duty while it remained in his warehouse; and on payment of the duty the person in whose name it is entered may at any time remove it. It was as much in the defendant's possession while it remained in the king's warehouse, as if it had been in the custody of a carrier or wharfinger: then his refusing to make the transfer, or give the order for delivering it, was a withholding of the tobacco from the rightful owner, and constitutes a conversion; but at any rate, the assuming any dominion 1805. M'COMBIE against DAVIES. [ 541 ] dominion over it, and taking it by the wrongful act of the broker, was a conversion. Lord ELLENBOROUGH, C. J. said, That the latter was the true ground to put the plaintiff's case upon; and if the case had been so presented to him at the trial, there would probably have been no nonsuit: but it was put upon the ground that the not giving of an order for the delivery of the tobacco from the king's warehouse was in itself a conversion, in which I could not concur; not conceiving that the mere not doing of an act was a conversion: but taking the case higher up upon principle, I think that the defendant's acts amount to a conversion. According to Lord Holt, in Baldwin v. Cole (a), the very assuming to one's self the property and right of disposing of another man's goods, is a conversion and certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of it; for, what is that but assisting that other in carrying his wrongful act into effect. The other judges assented, Lawrence and Le Blanc, justices, observing, That when the defendant was afterwards informed of the plaintiff's rights, and the tobacco was demanded of him, he refused to deliver it. Reader, for the defendant, submitted to the opinion of. the Court thus expressed as to the point of the conversion ; but suggested that there was no appropriation of the specific tobacco by the broker, who purchased it in his own name, to the plaintiff's use, so as to give him the legal property in it: but, Lord ELLENBOROUGH, C. J. said, That as between the broker and his employer, there was an appropriation of it to the latter, though it might not so appear to the public at large. Rule absolute for setting aside the nonsuit, and granting a new trial. (*) 6 Mod. 212. R. WALSH R. WALSH against TOULMIN and Another (a). at THIS 1805. Tuesday, Section 30 of the stat. 31 G. 2. c. 10, which inflicts a penalty of 50 l. on navy agents de manding, taking, or retain. ing more than 6d. in the pouud for receiving and paying over wages, &c. to any officer, seaman, or other royal navy, and person in the for all their trouble and attendance in re lation thereto, is not confined to inferior officers and sea men, as many sions of that statute are; and of the provi therefore navy agents demanding and receiv ing of a lieutenant in the navy more than 6d. in the pound upon the sum in fact received and paid over to him by them, tho' not more than 6d. in the whole account of de pound upon the of debtor and creditor, in cluding sums drawn for by the lieutenant himself upon the navy-offi.c, and paid and carried to his account by that office (which is authorized by stat. 35 G. 3, c. 94, making special provision for paying the wages, &c, of commissioned officers) are liable to the penalty; and the latter act is not a repeal of the former provision as to the payment of wages, &c. of commissioned officers. (a) I am indebted for this note to the assistance of some friends in court, having been obliged to leave the court soon after the case was opened at the bar. [ 512 ] 50l. &c. 1805. WALSH against TOULMIN. [543 ] 1803. 501. &c. The 12th count, which was similar in other respects to the last, charged that the defendants did retain for receiving the money and for paying the same to the said J. W. and for their trouble and attendance, an allowance or valuable consideration, exceeding in the whole the sum of 131. 4s. 6d. &c. The case then stated, That prior to the defendants becoming agents to Lieut. Walsh, Mr. Lowson was his navy agent for the said gun-brig, from the year 1796 to the 3d of July, 1801; during which time, Lieut, Walsh drew several bills on account of pay and wages, three of which, to the amount of 821. 13s. were remitted to Mr. Lawson, not as agent, but as negotiable securities in the ordinary course of business; and he received the same, and charged commission on them. On the 26th of November, 1803, the defendants were appointed by Lieut. Walsh, his agents, by power of attorney; and in Feb. 1804, made out and delivered to him the following account, and paid him the balance of 138 l. 17s. 6d. viz. Nov. 26, To power of attorney Dec. 15, To making out account per Pelter, with stamps.. 27, To paid Mr. Lowson balance of his account... 31, To postage. To balance due Lt. Walsh, and paid you 14th Feb. 1804 £.165 7 5 £.165 5 1804. And in May, 1801, the defendants made out and delivered the following account to Lieut. Walsh, and paid him the balance, 95 1. 18s. 6d. To fees passing ac- May 19, To paid you £.122 14 |