
    T. Clowes against Hawley.
    The BMignet or a bond may tnimun trover ¡(for it, in his own lh™obiigprB,awho h?a Íws9lV.!on°, HÍ c°uchrffoDd. la forC,td’bo> Certain lot of loMoVhjfobiiEigns,i"if it appears that the otngeih or the íeqi!isit!íyotnÍií part, to entitle |”sehehwiiirabe ®er wm^ttie wfe was t6be
    ¡a StoSoXiL to their joint tote.
    joint lessors cannotmamtam iro-
    
      tl 'aetto^of'efo^'Smjwil/I chaser "knew of
    THIS was an 'action of traver, tried "at fire Rensselaer circuit, , ' - . ' ‘ ‘ . m Jime. 1815. before Mr. Justice PlátU Thé declaration ' . I , „ > , ' contained two counts. The first statéd; that the plaintiff, -on the 18 th °f April., 1812. was possessed of á bond, executed by the defendant to -Hiram Clowes, dated the 20th of May, 1809,- for the shm-of l ,000 dollars, cohditioiied to; convey,to the-.Obligee or his assigns, the equal and undivided moiety' of a lot of land in Troy ; which bond, being in full force, was; afterwards, by the said Hiram Clowes, in his lifetime,: duly assigned, set over, and ' . , ° . , . . transferred to the .plaintiff; :by means whereof, the-plaintiff be* e^Fe legally possessed, dzc.; statingthe-"trover and conversion by the-defendant. • - •
    The second count was for the" conversión,. On the 5th of April,. 1814,. of a certain indenture of lease or agreément in - writing,.. between the plaintiff1 in this suit, and one Joseph Ketchunt, of-the first part, and George W. Storer., of the Second part, but executed by the plaintiff and by Storer only; by which the of the first part demised unto" the party of the second . ¡ ,w ¡. .i ' _ , ' , 1 ' j part, a certain farm in:.Brunswick, "in Rensselaer county,, ter one year from the 1s t of April, 1813, and by -which the party of the v ■ < ’ . ’ t * 1 > J . . part was-bouiid' to . the parties of the first part, to:-pay dollars for,rent on the 1st of January, 1814, and the further' PÍ 6.5 dollars rent oh- the 1st,oi April, 1814. ... •••
    The defendant pleaded not guilty. •
    ’ The plaintiff, on the l-lth"of March, 1814, before the -com-of. this, suit,, wrote a letter to: the defendant'and William McManus, forbidding -ihe transfer or delivery of any choses in action,, obligations, accounts,-writings,, or property whatsoever, held by them, or either of them, in trust "or otherwise, in which the plaintiff, or Hiram Clowes., deceased, had any interest, right, or claim,.in law or equity, to-any person whatever, except to the, plaintiff, - or for his use and- benefit;. and demanding of them, or either of them, a transfer and delivery to Ihe plaintiff, of all such deeds, writings, papers, &c.; and demanding,- also, a certain bond or writing, executed by the defendant ¡to Hiram Glowesin- Jiis- lifetime,.,for the conveyance Of a lot in Troy, &c., which said bond, Or writing, was assigned to the plaintiff,, and of which they, or one of them, had gotten the possession,, without any legal or equitable right or claim thereto; and that, incase of their non-compliance, a bill in chancery would be filed against them; and giving them notice, further, that S. Robs was authorized to accept and receive the said writings, conveyances, bonds, Sec. This letter was'delivered to the defendant on the 18th of March, 1814. This was-the only evidence of a demand of the defendant for the bond; &c.- The bond and assignment, pursuant.to a notice given by the plaintiff to the defendant, were produced at the trial. The defendant had called oh Stephen Ross, who was directed, as attorney of the plaintiff, to bring the suit,-and requested him"not commence an action, as he wished to settle the matter with the plaintiff; and the attorney, accordingly, delayed bringing the suit, for several days. .
    The plaintiff gave in evidence a writing signed "by the defendant, as follows:
    ■ “ Deed from Jacob I■. Vanderheyden to Thomas Clowes, for two lots, numbers —■—. Deed from Josepk Ketchum to Thomas Clowes., for one half a farm, lying and being in Brunswick¿ formerly possessed by Norman Pierce. . Deed from Joseph C. Yates to Thomas Clowes,, for a farm situate in Coble^s Kill, lot No. 23. Bond indenture from Lemuel Hawley to Thomas Clowes, for one half of lot No. 5, oñ River-street, Troy. Received the above, in trust, for Thomas Clowes.
    
    “ Lemuel HawleyN
    
    The judge refused to admit evidence, offered by the plaintiff,, of the value of the ground mentioned to be conveyed in the bond, in order to show his damages; and stated, that as he knew of no rule to ascertain the quantum of damages, hé should direct the jury to find nominal damages only. ,
    In support, of the second count, the plaintiff proved that an indenture, executed by him, and by the defendant, as attorney of Joseph Ketchum, to George W. Storer,. for the lease of a farm in Brunswick, were in possession of the defendant in April, 1814, when 65 dollars rent was" paid to the defendant. The lease was then produced by the defendant, and it appeared to be between Joseph Ketchum and the plaintiff, of the first part, and George W. Storer, of the second part; and the demise was •from the parties of the first part jointly, and all the rents and covetianís were reserved, 'and made .to then» jointly.. ‘-The dé- " / . ' ’ 1 ° " ffndant gave in evidence a deed from Joseph Kqtchvm, and his iyife,. to him, dated the SSd-of December, ISIS, for- an undivided'. ;mt>iety;.of the preriiises demised by the'satd léase-to George.VJ.; , 'Storer,: and described as- the land formerly-owned by Norris-. Pierce: ■ The- plain tiff oílered to prove- that,, at, -the time the..;-. above deed was- executed,., /an-, action -of ejectment was. pending, ■ • at the suit -of, James Cox, as lessor of the plaintiff in that action, against the' tenant in possession under Ketclmm, and the plaintiff, to recover possession of the-.-premises; but -the judge.rejected the evidence, and decided, that, as the lease was made byKetchum and the plaintiff jointly,, and -the -rents' reserved to thenr - jointly, the plaintiff -was precluded from . denying- Ketchum’$ -right to -convey a moiety of" the premises».' The plaintiff sub- _ -mitted to-a nonsuit, with leave to move to set it.aside, and fora new trial: . . " y
    
      Paine, for the plaintiff, contended,
    I., That' trover lies for at chase in cc'ction,
      
       hod that.the value of the''bond was the valuéof the land, for the conveyance of which it iras given ; and that the .evidence offered to show that value, was, therefore., improperly overruled by the judge. In Parry v. Frame,
      
       which was - an ..action of troverJ'or a. lease, the- plaintiff recovered the full'value of the -term. • -The demand and- refusal, in this case, were''" sufficiently proyed.
    
    S,' It -is .not pretended,., that Joseph Kelctmm. executed .the-' lease he .is not a party to it, - in fact!. The covenants were to . pay rent to the- party .of the first part, and not. to Joseph Ketclmm and- T-homas. Clowes: - As there , was aosigning in'this; case, by Ketdium, there is.;no estoppel.
      
    
    ' ' Again, the deed from Ketclmm, to the defendant, was -made •pending the action of ejectment.' ' ; .
    
      Buel and Van Vechten, contra,
    contended, that there, was not that the defendan t had . possession of the bond- when .the demand was -made ; and, that it was hot -shown ..that .the plaintiff had the property or possession of the bond.
    
    .. Again, it appeared from-the receipt produced, that the defendant was -a mere trustee for .the plain tiffj and ¿over does not lie against a, trustee". - The-plaintiff should seek-a different remedy, .ff there has been-a breach of trust.
    
    
      But there was no evidence of a conversion in this cas.e. The letter delivered to the defendant did hot amount to a demand-; and if it did, it does not appear what answer was given. The refusal must be express and positive, to be evidence of a conversion. The trustee was not bound to' seek the plaintiff, and deliver him-the papers. A bare non-delivery, without a refusal, is not evidence of a conversion. If the defendant shakes excuses for not delivering the thing demanded, it shows that he does not refuse tó deliver. ■
    Again, a recovery in this suit would be no bar to an action of debt, or covenant oh the bond. As to the damages, the plaintiff was entitled to nothing but the'value of the paper and 'wax. To recover more, he ought to have brought his suit.as assignee. If he is to recover the whole value'of the premises, in this action, in his own name, it will be allowing him to do, in one form of action, what could -not be done in another.
    As to the second count: the leas.e being a sealed instrument, Ketchum, who was one of the parties, ought to have joined in the action.
    
    Again, the lease-having expired, it was of no value, and the plaintiff could he entitled to no more than nominal damages.
    
    As to the objection, that t-he conveyance of Ketchum being made during the pendency of the action of ejectment, it should have been shown further, .that he knew of the pendency of the suit, and that the conveyance was made to defeat the suit, or impede the course, of j'u-stice.
    
    
      
       10 Johns. Rep. 172.
      
    
    
      
       2 Bos. &
      
    
    
      
       1 Esp. Rep. 22. Bull. N. P. 44.
    
    
      
       8 Mod. 312.
    
    
      
       1 Salk. 441. Bull. N. P 44.
    
    
      
       6 Bac. Ab. Trover. (C) (G) 1 Caines' Rep. 14.
    
    
      
       2 Fonbl. Eq. 169. n. b. 2 Atk. 162.
      
    
    
      
      
         Severin v. Keppell, 4 Esp. N. P. Cas. 156. 3 Selwyn’s N. P. 1177. 10 Johns. Rep. 173. 175.
    
    
      
       1 Saund. Rep. 291. f. note. Scott v. Godwin, 1 Bos & Pull. 67.
    
    
      
      
         Todd v. Crookshank, 3 Johns. Rep. 432.
    
    
      
       1 Hawk.ch. 84. s. 9. 8 Johns. Rep. 479.
    
   Per Curiam.

As to the count on the conversion of the bond, the only point for consideration, is, whether the judge was correct in ruling-that the.plaintiff was entitled to recover nominal damages only. , We must consider the conversion as proved, because no objection was taken to the proof of- it at the trial.' By the assignment of the bond: to the plaintiff, by the obligee, "he acquired an interest in- it, which courts of law will protect; ■and it is no answer to this action, to say, that the plaintiff might have sued directly on the bond, in the name of the obligee, or proceeded in equity for a specific performance. We are-to presume that the plaintiff had done every thing to. entitle himself to the deed, conditioned to be given, as the evidence to sustain the "action and to prove the damages was overruled. . If the plaint .tiff became entitled to a performance of the condition, tfyp damages sustained would be the value of the land. ■ The ncirH suit,/therefore, must- be set aside.

As to the lease, the' conversion of .which form's a part of the .plaintiff’s cause of .action,: it is proper to dispose of that also. From the plaintiff’s, own showing, it was executed by him and the. defendant, .as the attorney to- Kelchum, wko confessedly ■ owned one ..half of the demised premises,- as joint lessor to Stoxcr.. The defendant was not'bound, in this action, to .show his authority feomkreíeÁMW ;t(D: execute" the lease in his behalf. The• plaintiff has no right to the exclusive possession.of the-lease! Ope. tenant in common cannot sue the other, to recover, possession of documents relative to their .joint estate, kit op--. pears t'hat.the defendant had acquired Kefchurrts interest in the lands leased; and was,, therefore, as fully entitled to keep the lease,"-as .the plaintiff; is to demand its possession. It avails, nothing tp’ spy, that the defendant’s purchase of ft etchant was* pending an action-of ejectment, against Stored; it not'being ., ■shown that the defendant knew of that suit when he purchased; and, unless he,did know of it,,the p.urqhase was not atifact* of; xt^i (8 Johns. Rep. 479.)

.MotiongrátitédV.  