
    Seth Riford vs. John Montgomery.
    Orange,
    
      March, 1835.
    Where A procured a coat for the use of B, who had permission to wear it, and who sold it to C, and C used it as liis own, claiming to be the owner of it, Held, That A might maintain trover against C.
    That the court were under no obligation to instruct the jury that they might infer a gift of the coat from A to B.
    This was an action of trover for a coat, commenced before a justice of the peace, appealed by the defendant to the county court, and tried before a jury, June Term, 1834, upon which trial the plaintiff obtained a verdict in his favor. The cause came here upon the following bill of exceptions, filed by the defendant:
    “The plaintiff, in support of the issue on his part, introduced evidence tending to prove, that in January, 1834, he purchased a ■piece of fulled cloth of David Partridge ; — that afterwards he gave a Miss Riford two dollars to purchase trimmings for a coat, and directed her to take said cloth, which the plaintiff informed her he had purchased of Partridge, and go with Asa Riford, and purchase the trimmings, and get the coat cut out, and have Asa Riford measured, for the purpose of cutting said coat, which she did, and paid for said trimmings and cutting out of the two dollars, so received of the plaintiff. The coat was made up, and the plaintiff paid for the making; and after it was made, the plaintiff told Asa to take the coat and wear it till he called for it.
    The plaintiff also introduced testimony tending to prove that said Asa was a person of weak intellect, and a poor judge of the value of property; — that said Asa was a relative of said plaintiff.
    In further support of said issue, the plaintiff introduced the following affidavit of Ehud Darling, in which he deposes as follows :
    “ I am the officer who served the original writ in the suit of Seth Riford, appellee, against John Montgomery, appellant, now pending in this court. Said writ was handed me by the said Riford on the day of the service of the same, and Riford went with me, and before the writ was served by attaching property, Riford told Montgomery, that the coat he had of Asa Riford, was his [Riford’s] coat, and that he demanded of Montgomery said coat, as said Seth’s property ; and Montgomery said he had it of Asa Riford, and should not give it up, and denied that said Seth had any right to the coat; and on the same day, Montgomery said in my hearing, that he had on the coat that he had of Asa Riford, when said Seth demanded the coat as above stated.
    “ I further testify, that when said Seth handed me said writ, he directed me not to take Montgomery’s body on the same, but to attach property, and not make service of the writ until said Seth had seen him and demanded the coat. I took the writ and followed Montgomery about four miles, and told him I had a writ for him in favor of Seth Riford, and he must go back. Montgomery went back about half a mile with me, and then demand was made, as above stated, and soon after the demand was made, said Seth directed me to attach his horse, which I did.”
    In answer to a question by defendant, deponent said,
    “I do not recollect when I overtook Montgomery with the writ that I put my hand upon his shoulder, and said, ‘You are my prisoner, and must go back with me.’ ”
    The defendant, in support of the issue on his part, adduced evidence tending to prove, that the last of February, 1834, he exchanged coats with Asa Riford, and paid him two dollars as the difference between his and the coat of the said Asa.
    
      The plaintiff gave farther evidence tending to prove, that after the said Asa exchanged coats with the defendant, he wore the he had of the said Asa, and that after the plaintifF had traded with the defendant, he expressed a wish to rescind his contract; but the defendant refused, and Asa then told him not to carry the coat away. •
    No evidence was given to prove a demand of the coat, before action brought, save what is contained in the above affidavit of Ehud Darling.
    The counsel for the defendant requested the court to charge the jury,
    1st, That if they found that the plaintiff, with his own money, purchased the cloth, of which the coat in question was made — had it cut to fit said Asa — paid for the making, and told said Asa to take it and wear it, they were at liberty to find a gift of the said coat to the said Asa.
    2d, That if they found that the coat was cut and made for the said Asa, and he directed to take it and wear it, and that he did take it and wear it, and afterwards exchanged it with the defendant for his coat, he, the defendant, not knowing that the plaintiff had any claim to it; the plaintiff, although in point of fact he owned the coat, cannot maintain his action for it, without proving that he demanded it of the defendant, before the commencement of said action.
    8d, That the fact of the defendant wearing the coat after he had made the exchange with the said Asa, he being ignorant of the plaintiff’s claim to the same, was not, in law, a conversion of the coat, sufficient to enable him to maintain this aclion.
    The court refused to charge as requested by the counsel for the defendant; but charged the jury, that if they found that the plaintiff purchased the cloth, paid for the trimmings and making of the coat, and delivered it to Asa Riford to wear it till the plaintiff called for it, and that it was not paid for by the funds of said Asa; and that defendant, although he had made a legal bargain with said Asa for the coat, yet, if Asa revoked the bargain, before he and defendant separated, and defendant wore away the coat, against the will and consent of Asa, and afterwards wore and used the coat, claiming it as his own; then, in point of law, the coat was the property of the plaintiff, and it was a conversion in law by the defendant, and the plainfiff entitled to recover.
    
      
      Upham for defendant.
    
    — 1. The county court should have charged the juyy that they were at liberty, if they believed the witnesses, to find a sale or gift of the coat in question, from Seth Ri-fovd to Asa Riford. — 1 Shep. Touch. 227. I Sw. Dig. 273, 7G6-7. 2 Bl. Com. 440. 2 Kent’s Com. 353. Graudiac vs. Ardere, 10 John. Rep. 293. Moon vs. Hawks, 2 Aiken’s Rep. 390.
    2. Asa Riford, after having exchanged coats with the defendant, and made a delivery of his and received the defendant’s, had no right to revoke the contract. And the jury should have been so instructed in the court below. — 2 Bl. Com. 447. 2 Kent’s Com. 363.
    3. The jury should have been instructed that the facts proved in the case did not amount to a conversion of the coat by the defendant, and that the action could not be maintained without having a demand of the coat by the plaintiff, before the action was brought, and a refusal by the defendant to give it up,
    In trover, conversion is the gist of the action, and must be clearly proved. — 1 Sw. Dig. 536-7. 3 Stark. Ev. 1494-7-9. Dun-nell vs. Mosher, 8 John. Rep. 445. Everjtt vs. Coffin, 6 Wen-dall’s Rep. 603. Nelson vs. Merriam, 4 Pick. Rep. 249.
    In M’Combie vs. Davis, (6 East. 538) the court ruled that taking the property of another by assignment from one who had no authority to dispose of it, as taking an assignment of tobacco in the king’s ware-house by way of a pledge from a broker who had purchased it there in bis own name for his principal, and refusing to deliver it to the principal after notice and demand by him, was a conversion. Taking the assignment of the tobacco was no conversion. Therefore, a demand and refusal was necessary in order to enable the plaintiff to recover in the action.
    In Nixon vs. Jenkim, (2 H. Bl. Rep. 135) Whitesett, a trader, on the eve of bankruptcy, made a collusive sale of his goods to Jenkins. The assignees of Whitesett brought an action of trover against Jenkins to recover the goods, and failed in their action because they could not prove a demand for the goods and a refusal by the defendant to give them up.
    In the case of Jones vs. Sinclair, (2 N. H. Rep. 319) the plaintiff had delivered eight saddles to one Hall, a commission merchant, for sale. Hall became insolvent, and the saddles were taken by Sinclair, a deputy sheriff, on writs against Hall, as his property.— Jones brought an action of trover for them, and a demand, before the action was brought, was deemed necessary to entitle the plaintiff to recover.
    4. The demand testified to by Darling, was made after the action was brought, and not available on the trial.
    
      E. Weston, for plaintiff.
    
    — 1. Did the county court charge the jury correctly relative to the plaintiff’s property in the coat?
    We think there is no error in this part of the charge. The jury were directed to find the property of the coat in the plaintiff, if they found the facts that the plaintiff purchased and paid for the materials out of which the coat was made, and also find for the making, and that it was not paid for out of the funds of Asa Riford : And the jury, under the charge, have found the terms on which the coat was delivered to Asa, which terms rebut any presumption of a gift.
    
    
      2. Do the facts, as found by the jury, under the charge o! the court, amount to a conversion?
    The facts as found by the jury are, that before defendant and Asa separated, Asa revoked the pretended bargain; and that defendant wore away the coat against the will and consent of Asa, and afterwards wore and used the coat, claiming it as bis own-
    3 Stark. Ev. 1505 — “ The defendant being ignorant of the pl’ff’s interest, sold part and detained part, it was held that he wrs liable in trover as well for the goods sold as for those which regained in his hands.”
    4 Com Law Rep. 86, Featherstonehaugh vs. Johnstone.
    
    3 Stark. Ev. 1506 — “A redelivery of goods is evidence in mitigation of damages, but no bar to the action — as if A take the horse of B, and ride him, and then deliver him to B.”
    3 Stark. Ev. 1507 — “The sheriff is liable iv trover for seizing the goods of a bankrupt, although he has levied the money and paid it over before the commission, and although he had no notice of the bankruptcy.
    So the wrongful assumpsion of property, or right of disposing of goods, may be a conversion in itself, and render unnecessary a demand and refusal. — See C. L. Rep. 322, Somerset vs. Jarvis et al. —-1 Swift Dig. 536, 537.
    The plaintiff is entitled to sue in trover and no demand necessary, as Asa had no authority to sell the coat, and the possession of the coat by defendant was wrongful. — 13. C L. Rep. 66, Sel-leclc vs. Smith et al. — And 7jC. L. Rep. 145, Barton vs. Williams el al.
    
   The opinion of the court was delivered by

Williams, Ch. J.

It appears by the case that the evidence introduced tended to prove incontestably the property in plaintiff, tpat tpe coat was procured for the use of Asa Riford, who had permission to wear it until called for. He had no authority or permission to sell or exchange it. When he did sell he was liable to the plaintiff. Any one to whom _ he sold would also be liable to jhe plaintiff if be either used it as his own or refused to deliver it on demand.

The defendant, however, contended that the jury were at liberty to infer a gift to Asa of the coat, and so requested the court to change the jury. If the jury were at liberty to draw this inference, still it would be no error, because the court refused to tell them so. If the jury, from the evidence, could come to such a conclusion, it was an inference of fact for them to make. Unless, then, the court bad Void them, they were not at liberty to draw such an inference, when it was a proper subject for their consideration, it would be no error in the court. -It is is optional with the court, whether to charge the jury on the facts in evidence or not. The jury may disbelieve the testimony given; they, may draw inferences from the testimony already in. They are usually reminded of their right tn'd powers in this particular by the counsel. But the court are undsr no obligation to back up the argument of the counsel and instruct the jury that they may reject the testimony, or draw any rempte inferences which are urged upon them by counsel. In this case the facts in evidence would not warrant any such inference as is claimed by the defendant. The jury', from the testimony' as detailed, could not, with any propriety, have founded a verdict on a supposed gift cf the coat. So far from their being required so to presume a gift, it would have been rather the duty of the court to have returned the jiry to a second consideration, if they had found any such gift.

In relation to the conversion, the evidence was equally conclusive. The defendant bought the coat of one who had no right to sell, — used it as his own, — wore it, and claimed to be the owner of it. ¿This was a conversion according to all the authorities, however innocently be may have purchased it, or however much reason he may have had to suppose it to be his. In most cases of conversion the defendant claims a right, or supposes he has a right; and it is never made to depend on the fairness of his intentions, or what be may suppose as to his right. As here was an actual conversion, no demand was necessary to enable the plaintiff to maintain this action. The question which has been raised in relation to the demand it is unnecessary to consider, as none was necessary. We are all of opinion that the defendant was not entitled to the charge requested,-^-and. the judgment of the county court must be affirmed. ^ \/  