
    CHAMBERS a. LEWIS.
    
      Court of Appeals;
    
    
      September Term, 1863.
    Conversion.—Demand and Refusal.—Manufacturing Corporation.—Liability.of Stockholders and Trustees,.—Sheriff’s Sale.—Bona-fide Purchaser.—Fraudulent Transfers.—Change of Possession.
    In pleading the liability of a stockholder under the Laws of 1848, ch. 40, § 10,— which provides that stockholders, in manufacturing corporations allowed to be formed by that act, shall be liable, in case the capital is not paid in, for debts of the company, in an amount equal to the amount of stock held,—it must be averred that such stockholder held an amount of stock equal to the amount for which he is sought to be held liable.
    In pleading the liability of a trustee under section 12 of the same act, it must be averred that the debt was existing at the time of the failure to publish the annual certificate, or that it was contracted afterwards, before such report was published.
    In pleading the liability of a trustee who has .consented to an increase of the company’s indebtedness beyond its capital, in violation of section 23 of the same act, it must be averred that the excess of debt over the capital was equal to, or exceeded, the amount for which he is sought to be held liable.
    To constitute a demand and refusal evidence of a conversion, it is sufficient that the goods are in the possession of the agent of the defendant, and that the latter, on demand, refuses to permit his agent to deliver.
    
    
      The title to goods of one person, wrongfully sold on execution as the property of another, does not pass to the purchaser, to the exclusion of the title of the true owner in possession, although the purchaser may have acted in entire' good faith.
    
      This rule applied where the title of the true owner was acquired at a prior sale on execution against a corporation of which such owner was president, and the goods had never been removed, the owner's possession, though commencing before the levy of the first execution, being a mere continuance in occupation, in his individual right, of the late place of business of the corporation.
    
      On these facts : Held, 1. That there was no ground for instructing the jury that the prior sale was fraudulent against the second purchaser for want of a change of possession.
    2. That the demand and refusal, and the identity of the goods, were alone to be submitted to the jury, there being no evidence which would justify the jury in pronouncing that the first sale was fraudulent.
    Appeal from a judgment of the New York Common Pleas.
    This action was continued by Thomas Chambers against George Lewis, Jr., and Augustus Cleveland, executors of George Lewis, deceased.
    The plaintiff originally sued the 'defendants’ testator for the value of certain barrels of soapstone and redstone, and a quantity of vulcanized gutta-percha, alleged to have been the property of the plaintiff, and to have been converted by the defendants’ testator.
    The answer denied that the plaintiff owned the articles in question, or that the then defendant had converted them ; and averred that certain articles (but whether those in question the defendant did not know) had been left in the store Ño. 66 Liberty-street by the United States Yulcanized Gutta-percha Belting & Packing Co., who were the original owners of the goods; that the store was not the property of the defendant, nor ever had been; and that the goods were still there, and that they had never been appropriated or interfered with by the defendant. That the articles had been sold to the defendant by virtue of an execution under a judgment against the company, and that the defendant was the owner of the same, and entitled to the possession of them, although he had never taken possession thereof.
    The answer also contained a counter-claim against the plaintiff, as a member, stockholder, and director of the said company, and seeking to hold him liable on a judgment against the company, assigned to the plaintiff.
    The counter-claim was as follows :
    “ And the said defendant, further, and by way of counterclaim to the demand of the plaintiff,' says that the said plaintiff is a member, stockholder, and trustee of the United States Vulcanized Gutta-percha Belting & Packing Co. above mentioned, —a corporation created for manufacturing purposes, under the laws of the State of Hew York, on or about the 27th day of February, 1857,—and was, on the first day of February, 1859, and some time prior thereto, the president of said company. •
    “And this defendant, further answering, by way of counterclaim, says, that on the 15th day of March, 1859, a judgment was recovered by the above-mentioned Augustus Cleveland, against the said United States Vulcanized Gutta-percha Belting & Packing Co., in the Marine Court of the city of Hew York, for rent of the aforesaid store Ho. 66 Liberty-street, due February 1st, 1859, which said judgment was duly docketed with the clerk of the city and county of Hew York, and execution issued thereon to the sheriff of the city and county of Hew York; and that said execution has been returned unsatisfied; and that the sum of three hundred and ninety-six dollars and sixty-one cents, with interest from the 15th day of March, 1859, is now actually due thereon; and that said judgment was, on the second day of May, 1859, duly assigned by the said Augustus Cleveland, for a valuable consideration, to this defendant.
    “ And this defendant, further answering, says that he is entitled to recover the amount due on said judgment from the plaintiff, and to counter-claim the same against him for the causes following:
    “ That by the certificate of incorporation of the United States Vulcanized Gutta-percha Belting & Packing Co. aforesaid, filed in the clerk’s office of the county of Queens, the capital stock of said company was fixed at one hundred thousand dollars; but that the whole of said capital stock has not been paid in, as this defendant is informed and- believes. And the defendant claims and insists that the plaintiff, as stockholder of said company, is thereby rendered liable for the debts of said company, under section 32 of article 2 of title 12 of chapter 18 of p'art 1 of the Revised Statutes.
    “ That the said company have neglected, as this defendant is informed and believes, to make and publish, within twenty days from the first day of January, 1859, the report required by section 34 of the article of the Revised Statutes above referred to; and this defendant insists that, by reason of such neglect, the plaintiff, as a trustee of said company, became, and is, individually liable for the debts thereof.
    “That the said company, as this defendant is informed and believes, has become indebted to various persons to an amount exceeding the amount of the capital stock of said company, with the consent of said plaintiff. Wherefore, the defendant insists that the plaintiff, as a trustee of said company, by reason of such consent, became, and is, liable for the debts of said company, to the extent of said excess, under section 4.6 of the said article.
    “And the defendant claims that, by reason of the premises, the plaintiff is indebted to him in the sum of,” &c.
    A demurrer to the counter-claim was sustained, on the ground, among others, that the action was in the nature of tort, and that the summons (which was for a money-demand on contract, and was claimed by the defendant’s counsel to amount to a waiver of the tort) could not be referred to as determining that the plaintiff had elected to waive the tort, and rely on an implied contract. (10 Ante, 206 ; affirmed, 11 lb., 210.) .
    The facts established on the tidal were as follows: The articles in question were originally the property of the company, and by them deposited in the store hired by them.from Mr. Cleveland. On the 24th day of December, 1858, they made a general assignment of all their effects to Mr. J. O. Sargent; the plaintiff, who was president of the company, continued to occupy the store as agent of the assignee. The property in question, and other property, was sold at the store, under an execution, January 7th, 1859, and the greater part bought in by the plaintiff. The goods .still remained in the store, and were left there when the company vacated it, February 1st, 1859. On the 30th of March, 1859, the same goods were sold under another execution against the company, and purchased by the defendants’ testator, who also left them in the store. The plaintiff subsequently demanded the goods of the defendants’ testator, who did not deliver them, saying that he understood they were the property of the company.
    The jury found a verdict for the plaintiff for $724.58. The appeal was oh exceptions to the refusal to nonsuit, to the judge’s charge, and to his refusal to charge; also from the order sustaining the demurrer to the answer.
    
      John Pyne and Peter Y. Gutter, for the appellants.
    I. The plaintiff did not establish the right of property, or the right oí immediate possession; his pretended title was void. (Twyne’s Case, 3 Coke, 80; 1 Smith’s Lead. Cas., 33, and notes; 2 Rev. Stat., 136, § 5; Jennings a. Carter, 2 Wend., 446; Irons a. Smallpiece, 2 B. & A., 551; Selwyn’s Nisi Prius, 1053; Farrington a. Sinclair, 15 Johns., 428, 429; Farrington a. Caswell, Ib., 430; Fonda a. Gross, 15 Wend., 628; Gardenier a. Tubbs, 21 Ib., 169; Collins a. Brush, 9 Ib., 198; Randall a. Cook, 17 Ib., 53 ; Butler a. Van Wyck, 1 Hill, 438; Griswold a. Sheldon, 4 N. Y., 581.)
    II. The judge had no authority to charge the jury at all as to who was the owner of the property. (2 Rev. Stat., 136, § 5.) Where there is no evidence at all of good faith, the judge should charge the jury that the sale is fraudulent and void, as matter of law. (Butler a. Van Wyck, 1 Hill, 438; Randall a. Cook, 17 Wend., 53.) Where there is evidence of good faith, the whole question is one of fact, to be decided by the jury alone. (Griswold a. Sheldon, 4 N. Y., 581; Smith a. Acker, 23 Wend., 653.)
    HI. Independently of the question of property, the facts proven were not evidence of a conversion. (Selwyn’s Nisi Prius, 1060, 1073-1076; Buller’s Nisi Prius, 44, a, b; Hill a. Covell, 3 Blackst., 153; Greenl. on Ev., part 4, § 644, note 18; Stephens’ Nisi Prius, 2685, 2688-2699, 3705; Donohue a. Henry, 4 E. D. Smith, 162; Kelsey a. Griswold, 6 Barb., 436; Lord Chancellor of Oxford’s Case, 10 R., 56, 57, per COKE, J.; 2 Saund., 37, e; 3 Stark. on Ev., 3 ed., 1161; Munger a. Hess, 28 Barb., 75; Thimblethorpe’s Case, cited in 2 Buls., 310, 314; Bumley a. Caswell, 2 B. & P., 428; Storm a. Livingston, 6 
      Johns., 44; Irons a. Smallpiece, 2 Buls., 312; Cowen’s Treatise, 304.)
    IY. This is an action in which a counter-claim was admissible. The summons being for a money-demand on contract, is conclusively a waiver of the tort, and an action on the implied contract. The summons determines the character of the action. (Tuttle a. Smith, 6 Abbotts’ Pr., 329; Davis a. Bates, Ib., 15; Blanchard a. Strait, 8 How. Pr., 83; Ridden a. Whitlock, 12 Ib., 208; Bank of Beloit a. Beale, 11 Abbotts’ Pr., 375; Opinion of Judge Brady in this case, 10 Ib., 206.)
    Y. The prayer for relief, demanding judgment for a sum certain, and not as damages, also determines the action to be one in which the tort is waived. (People a. Bennett, 6 Abbotts' Pr., 343; Hinds a. Tweddle, 7 How. Pr., 278; Dows a. Green, 3 Ib., 377; Spalding a. Spalding, Ib., 297; Bank of Beloit a. Beale, 11 Abbotts' Pr., 375; Chit. Pl., 104, 112, 119.)
    YI. Even were the action in form ex delicto, the counter-claim was good as a claim arising out of the transaction on which the complaint is founded, or connected with the subject of the action. (Xenia Branch Bank a. Lee, 7 Abbotts’ Pr., 372.)
    
      John T. Hoffman, for the respondent.
    I. This claim of property by defendant, and refusal to deliver them, is a conversion. (Mitchell a. Williams, 4 Hill, 13; Lockwood a. Bull, 1 Cow., 322; Reynolds a. Shuler, 5 Ib., 323; Wintringham a. Lafoy, 7 Ib., 735; Connah a. Hale, 23 Wend., 462; Bristol a. Burt, 7 Johns., 254; Murray a. Burling, 10 Ib., 172; Jones a. Hart, 2 Salk., 441.)
    II. The various exceptions to the charge are not well taken.
    III. The order sustaining the plaintiff’s demurrer is right. 1. The action is to recover for a wrongful conversion of plaintiff’s property; therefore no counter-claim or offset can be pleaded. 2. The action was commenced April 1st, 1859, and the defendant acquired his claim May 2d, 1859. Section 150 of the Code requires the counter-claim to be one existing in favor of the defendant at the time the action is commenced. (Van Valen a. Lapham, 13 How. Pr., 240; Gage a. Angell, 8 Ib., 335.) 3. There is no allegation that the plaintiff was a stockholder at the time the debt was contracted for rent by the company. (Moss a. Oakley, 2 Hill, 265; Judson a. Kossie Galena Co., 9 Paige, 
      598.) 4. Defendant has not alleged that plaintiff held stock equal to the amount of his judgment or any other sum. 5. The statute requires the president and trustees, within twenty days from the first day of January in every year, to make and publish their report; and for a neglect of this duty, they are liable for all debts then existing, and for all subsequently contracted, until the report is published. ■ The answer alleges that the statute was. not complied with on the 20fch of January, 1859. But the answer shows that the debt did not exist until February 1st, 1859; nor is it alleged that plaintiff did not publish the report between January 20th, 1859, and February 1st, 1859. 6. At the time the defendant swore to the answer, May 3d, 1859, he alleges that the plaintiff is a trustee of the company, and that at that time the debts of the company exceeded its capital. But the statute makes the trustees liable for the excess of debts over the capital stock, and there is no'pretence that the defendant’s claim is any part of that excess, nor is it alleged that the excess is equal to defendant’s demand.
    
      
       Refusal to deliver after demand, is not itself a conversion, but only evidence of it; and an allegation in pleading, or a finding by a referee, of a demand and refusal, is not.an allegation or finding of a conversion. (Hunger a. Hess, 28 Barb., 75 ; Hill a. Covell, 1 N. Y., 522.) _
      The following cases further exhibit the rules as to the necessity of a demand before suit in respect to personal property, and the mode of making such demand.
      In the case of an actual conversion of personal property, or a tortious taking of it, no previous demand is necessary to maintain an action against the wrongdoer. (Farrington a. Payne, 15 Johns.,431; Pierce a. Van Dyke, 6 Hill, 613 ; Stillman a. Squire, 1 Den., 327 ; Zachrisson a. Ahman, 2 Sand/., 68.)
      A buyer of goods, who procures the sale by fraud, is guilty of a tortious taking within this rule, so that the seller may sue him without a previous demand. (Ladd a. Moore, 3 Sandf., 589 ; Tallman a. Turck, 26 Barb., 167.)
      As to demand on insolvent buyer, or on custom-officer having custody of the goods in transit, see Mottram a. Heyer (1 Den., 483 ; 5 lb., 629.)
      The following are illustrations of what is considered an actual conversion within this rule.
      One in possession of goods of another as bailee, wrongfully selling them (Glassner a. Wheaton, 2 E. D. Smith, 352); or a part of them. (Vincent a. Conklin, 1 lb., 203.)
      A plaintiff and constable seizing the property of A. under process against B., although notified of the ownership. (Farrington a. Payne, 15 Johns., 431; Tompkins a. Haile, 3 Wend., 406 ; and see Stillman a. Squire, 1 Den., 327.)
      A bailee delivering the thing to. a person not authorized to receive it. (Esmay a. Fanning, 9 Barb., 176.)
      A tenant wrongfully removing from the premises chattels leased therewith. (Davison a. Donadi, 2 B. D. Smith, 121.)
      If the defendant is sought to be held liable constructively, on account of the possession of another person, without knowledge by him of any tortious act having been committed,—e. g., where a husband is sued for stolen goods delivered to bis wife,—a demand and refusal are necessary before an action can be maintained for the goods. (Gurney a. Kenny, 2 E. D. Smith, 132.)
      Where goods wrongfully taken by one person come into the possession of another, a demand should be made upon the latter before suit against him, unless it is known that he cannot show that he came into the possession in good faith, and for a lawful purpose. (Barrett a. Warren, 3 Hill, 348; Pierce a. Van Dyke, 6 lb., 
        613 ; Hunter a. Hudson Iron & Machine Co., 20 Barb., 493 ; Ely a. Ehle, 3 N.Y., 506 ; Tallman a. Turck, 26 Barb., 167.)
      It is not necessary in such case for the plaintiff to disprove the defendant’s good faith and the lawfulness of his purpose, but the burden of proof is upon the defendant to vindicate his possession, and show that a demand was necessary before the suit. It seems, therefore, to be the better opinion, that in an action against such a one a demand need not be averred in the complaint, and that the case of Fuller a. Lewis (3 AbboUs’ Pr., 383 ; S. C., 13 How. Pr., 220), where an averment of demand was held necessary upon demurrer, is not to be extended; although the conclusion may very well be justified in an action against an assignee for benefit of creditors, as in that case, for he may be properly presumed to have come into possession in good faith, and for a lawful purpose.
      In an action against an innkeeper for loss of his guest’s property, demand before suit is not necessary where the goods are actually lost. (McDonald a. Edgerton, 5 Barb., 560 ; Willard a Bernhardt, 2 E. D. Smith, 148.)
      It is not necessary to tender back unpaid negotiable paper, which was received as security for a bailment, before suing a pledgee of the bailee to recover the thing bailed. (Keutgen a. Parks, 2 Sand/., 60.)
      Where one borrows on a request that the owner would lend to him until a certain event, and let him pay in kind, the owner must make demand after the event before suit brought. (Gilbert a. Iron Manufacturing Co., 11 Wend., 625.)
      In general, property may be demanded of a bailee wherever he may be at the time, and although he is not bound to deliver it at that place. If he answer that he is ready to deliver it at the proper place, there is no breach of duty ; but if he deny the bailor’s right, and refuse to deliver the property at all, it is a conversion. (Dunlap a. Hunting, 2-Den., 643.) As to demand on bailee’s partner, see Holbrook a. Wright (24 Wend., 169). Where a carrier of goods did not bring the goods to the terminus at which he undertook to deliver them, and had no office or agent there, he was held liable, although the plaintiff had made no demand of them at that place. (Schroeder a. Hudson Biver B. B. Co., 5 Duer, 55.)
      An officer having made a proper levy, cannot be sued in trover by the debtor for a part of the goods which was not sold, without proving a demand that he redeliver them, and a refusal. (Whitmarsh a. Angle, 3 Code R., 53 ; S. C., 1 Am. Law R., N. S., 595.)
      Where a debtor’s property levied on is such that he is entitled to have a certain amount or value of it exempt, he should, before suing for its detention, give notice to the officer that he claims that it is exempt, demanding a redelivery, and give the officer an opportunity to comply. (Seaman a. Luce, 23 Barb., 240. Compare Lynd a. Picket, 7 Minn., 184.)
      Where the defendants caused a vessel belonging to M. to be seized in Connecticut under an attachment against his property, issued in an action brought by them against him in a court of that State, and at the time of the levy of the attachment the vessel was subject to a chattel mortgage to the plaintiff, which was not then due, and under which M. still had the exclusive right to the possession of the vessel, but subsequently the mortgage became due ;—Held, that on default in payment, the mortgagee’s demand on the defendants for an order that the vessel be delivered to them might properly he made upon the defendants where they were found at the time, and the plaintiff was not bound to tender the fees of the attachment. (Fairbanks a. Bloomfield, 5 JDuer, 434.)
      One who would rescind a sale of goods by him, upon the ground of fraud in the purchaser, must act promptly, and return, or offer to return, what he has received upon it. He must rescind 'in tolo, and thus place the other party in before the sale. (Wheaton a. Baker, 14 Barb., 594.)
      But where different articles are sold at distinct prices, and one of them is not according to the contract, it is not necessary to return the other articles, although purchased at the same time. The purchaser may return the defective article, and recover the price paid therefor. (Manning a. Humphreys, 3 B. D. Smith, 218.)
      In an action of nuisance against a continuer, for neglect to remove it, a special request to remove it must be shown. (Hubbard a. Bussell, 24 Barb., 404.)
      The fact that one who has delivered notes upon an agreement not binding upon him, repudiates it, does not render the possession of the other party tortious, but a demand must be made before suit. So held, where the agreement was void for usury. (Boughton a. Bruce, 20 Wend., 234.)
      
        So held, also, where the agreement was void under the Statute of Frauds, for not being in writing. (Spoor a. Sewell, 3 Hill, 307.)
      To enable the owner to maintain an action for the conversion of a chattel hired, it is not necessary for him to tender back to the defendant the amount received for the hire. He may recover for the injury sustained by the conversion, and also keep what was agreed upon between the parties, and received as an equivalent for the lawful use of the thing. (Disbrow a. Ten Broek, 4 B. D. Smith, 397.)
      An assignment of the thing by the true owner, after its conversion, does not enable the assignee to recover, except on a new demand, and a refusal. (Hall a. Bobinson, 2 JV. K, 293 ; Howell a. Kroose, 2 Abbotts’ Pr., 167 ; S. 0., less fully reported, 4 B. D. Smith, 357.)
      And such demand on one who ceased to have possession before the assignment does not prove a conversion. (Duell a. Cudlipp, 1 Hilt., 166; but see Keutgen a. Parks, 2 Sana’.f., 60.)
      Where the buyer of goods sues for the seller’s breach of contract to deliver the goods at a particular time and place, he must prove that he was ready and willing to pay for the goods, but need not prove a tender or demand. (Coonley a. Anderson, 1 Hill, 519 ; Tail a. Bice, 5 N.7., 155; Bronson a. Wyman, 8 lb., 182. Compare Chapin a. Potter, 1 Hilt., 366.) As to the place of demand where the place of delivery is not fixed, see Bronson a. Gleason (7 Barb., 472).
      Where a sale was of a certain share of growing fruit, with a guaranty that it should be at plaintiff’s disposal, it was held that the complaint must aver either that the fruit was not on the trees, or that plaintiffs had been interfered with by third persons in gathering it. A demand and refusal are not appropriate in such a case. (Dabovich a. Emeric, 7 Gal., 209.)
      Where goods have been converted into money, a demand of payment is a sufficient demand. (La Place a. Aupoix, 1 Johns. Gas., 406.)
      Bills of lading being representatives of the property covered by them, a demand of the bills is equivalent to a demand of the property. (Zachrisson a. Ahman, 2 Sand/., 68. Compare Keyser a. Harbeck, 3 Huer, 373.)
      Under the Non-imprisónment Act (Laws of 1831, 396, ch. 300, § 4, subd. 3),— which allows an arrest in certain cases where the defendant has rights in action which he unjustly refuses to apply to a judgment against him,—it is not necessary that the creditor, in demanding application of defendant’s property, specify particular stock, money, &c., to be applied. If the debtor absolutely refuses to apply any of his assets, he cannot afterwards object that there was no person present at .the time of the demand, authorized to receive them. Though he might refuse to assign his property to the creditor, he should offer to assign to some proper party; and if he simply refuses a general demand, it is an unjust refusal, within the act. (Steward a. Biddlecum, 2 H. T., 103, See, also, Hall a. McKuight, 6 H. T. Leg. Obs., 348.)
    
   By the Court.—Davies, J.

It will be most convenient first to examine the correctness of the judgment sustaining the demurrer- to the defendant’s counter-claim. Assuming that the testator of the defendants was the owner of the judgment, under such circumstances that if the plaintiff was liable to pay it, it was a legitimate counter-claim "upon the facts set forth, it will be necessary to inquire whether the matters so stated, in fact show any liability on the part of the plaintiff to pay that judgment. In my opinion, they clearly do not.

By the 32d section of the General Manufacturing Act, it is provided that all the stockholders of the company shall be severally individually liable to the creditors of the company, to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of its capital stock is paid in. Mow it is not -averred in the complaint that the plaintiff held an" amount of stock in the company equal to the amount of the debt held and owned by the defendants. He was, therefore, not liable to pay that debt, unless he held an amount of "stock equal to it,, and that is not averred. Mo amount of stock is alleged to be held by him, nor is the number of shares he held alleged, nor the nominal amount of each share. It is only averred that he was a stockholder, and this averment might well be true if he held one share of stock, to the amount of five dollars; hut it would not follow from this that he was liable individually to pay the debt due by the company to the defendants’ testator.

In relation to the second ground of counter-claim, the same fatal deficiency of proper and necessary averments is found. By the 35th section of the same act, it is declared that such company shall annually, within twenty days from the first day of January, make and publish a report as therein prescribed; and if the company shall fail to do so, all the trustees of the company shall he jointly and severally liable for all debts of the company then existing, and for all that shall be contracted before such report shall he made. To constitute a liability on the part of the plaintiff under this section, it was essential to have averred that the debt was existing at the time the default was made, or that it was contracted afterwards, and before such report was published. This omission is fatal, and the facts alleged create no liability to pay the debt referred to, on the part of the plaintiff.

The same difficulty arises upon the matters stated in the third ground of counter-claim. By the 46th section of said act, it is declared that if the indebtedness of any such company shall at any time exceed the amount of the capital stock, the trustees of such company assenting thereto shall be jointly and individually liable for such indebtedness to the creditors of the company. It is not stated in the complaint what excess of indebtedness has been incurred over and above the capital stock. It is said to be an amount exceeding the capital stock. It may be only one dollar, and the averment of the complaint he satisfied. If the defendant had desired to make the plaintiff liable for his debt, it was incumbent on him to have averred that such excess was equal to, or exceeded the amount of his debt. The plaintiff was liable, as is truly stated in the complaint, only to the extent of such excess; but clearly he was not indebted to the defendant in the amount of his judgment, if such excess did not equal or exceed the amount thereof.

The judgment of the Common Pleas, sustaining the demurrer to the counter-claim, was clearly correct.

It remains to inquire whether there was any error in the refusal to charge, and in the charge as made. The first request to charge assumes that there can be no conversion, unless the party is in the actual possession of the goods at the time of the demand and refusal. The possession of the agent of the defendant was his possession; and the conversion was equally as effective by his refusal to permit his agent to deliver'the goods, as if they had been in his actual possession, and he had refused to deliver them himself. The defendant in his answer claimed to be the owner of the goods, and entitled to the possession thereof. In Cobb a. Dows (10 N. Y., 335), the question was, whether the defendants had been guilty of a conversion of a quantity of wheat. It is said, in the opinion delivered in the Supreme Court, that if they have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they were guilty of the conversion, and their liability to the plaintiff was established; and this court held, if they availed themselves of the act of their agent, who refused to deliver the wheat, it was a conversion on them part. In this case, the defendant claimed the ownership and possession of the property; and actual possession of it by him was not necessary before he could be charged with the conversion of it.

The second request to charge has no soundness in it. It was of no importance whatever whether the defendant had acted bmafide in making the purchase by himself at the sale on the 30th of March. The question was, whether the plaintiff had a better and prior title to the property, and this fact was to be determined without any reference whatever to the conduct or motives of the defendants in purchasing the same property at the' subsequent sale on the 30th of March. The plaintiff, on a sale upon one execution, issued upon a judgment against the said company, docketed on the 2d of December, 1858, became the purchaser of the goods, and paid to the sheriff making the sale the amount of his bid, and took possession of the property thus sold. This sale was made on the 7th of January, 1859, and the property remained in the same store, and was still there at the time of the demand made by the plaintiff. The company had made an assignment on the 24th of December, 1858, and after such assignment the assignee took possession of the store, and continued such possession until February 1st, 1859. On that day Mr. McMartin took possession of the store, and with his assent the goods of the plaintiff were carried there, and were there at the time of the sale to the defendant, who requested the witness to keep the possession of them, and he refused to give them up.

The judge charged the jury, to which the defendant excepted, that if the property purchased by the plaintiff at the sheriff's sale was the same property afterwards purchased by the defendants, 9-nd which was left in McMartin’s possession, the plaintiff, in virtue of such prior sale, was the owner. This proposition left fairly to the jury the question whether the property purchased by the plaintiff and that purchased and claimed by the defendants was identically the same. The jury found that they were, and that disposes entirely of that question. I find no difficulty in sustaining the other portion of the charge. It was a conceded fact that the goods originally belonged to the company ; that a valid and regular judgment was recovered against it; and that an execution was issued upon it, by virtue whereof the goods were levied upon and sold, and the plaintiff became the purchaser, and paid to the sheriff the amount of his bid. The plaintiff testified that he immediately took possession thereof ; and if it can be argued that the company had still the possession thereof, by reason of its occupancy of the store up to the 1st of February, that occupancy ceased on that day, and any possible presumption of possession of the goods by the company then ceased. The judgment under which the defendant claimed was not recovered till the 15th of March; at which time, beyond all question, the goods were in the possession of the plaintiff or his agent. There was no error, therefore, in this part of the charge.

The other portion of the charge is unquestionably correct. If the jury found the facts as stated by the court, no doubt remains of a conversion by the defendant. If he had not intended to enforce his rights, which he deemed he acquired by the sale, when the demand was made on him for the goods he would naturally have disclaimed any right or title to them. His conduct then, and his claim in his answer to be the owner of the goods and entitled to the possession, coupled with the facts found by the jury, remove all doubts of the conversion of them made by him.

The judgment should be affirmed, with costs.

Balcom, J. (dissenting).

The counter-claim, set up in the answer was not a cause of action arising out of the transaction set forth in the complaint as the foundation of the claim, or connected with the subject of. the action. Hence the demurrer to the same was properly sustained. (Code, § 150.) It was also properly sustained, for the reason that the counter-claim did not belong to the original defendant in the action at the time the same was commenced. (Rice a. O’Connor, 10 Abbotts’ Pr., 362; Gage a. Angell, 8 How. Pr., 335; Van Valen a. Lapham, 13 Ib., 240; Pattison a. Richards, 22 Barb., 143.)

The judge properly refused to nonsuit the plaintiff. There plainly was sufficient evidence to require the judge to submit to the jury the question whether the defendant Lewis had converted the goods. It also justified the judge in refusing to charge the jury that unless they found the goods to- have been in the actual possession of the defendant at the time of the alleged demand and refusal, such demand and refusal would not authorize them to find a conversion by the defendant.

I am also of the opinion that the judge properly refused to chai-ge the jury that-if they found there was a bona-fide purchase by the defendant at the sheriff’s sale they should find a verdict for the defendant. A verdict for the defendant would have been erroneous, unless the jury had found that the plaintiff’s title was fraudulent against the defendant’s purchase; and the judge was not asked to submit that question to them. It was not so clearly fraudulent, if fraudulent in fact, as to have justified the judge in holding that as matter of law it was fraudulent. He must have so held if he had authorized the jury to render a verdict for the defendant if they found he was a bonafide purchaser of the goods.

All that the judge charged the jury respecting the demands and refusals, was, that such demands and refusals were “ evidence of a conversion” by the defendant. He did not charge that those acts were conclusive evidence of a conversion; and, as I understand the charge, he submitted to the jury the question. whether the evidence established a conversion by the defendant. This was correct.

But I am constrained to say I think the judge erred in charging the jury “ that if the property purchased by the plaintiff at the sheriff’s sale was the same property afterwards purchased by the defendant, and which was left in McMartin’s possession, the plaintiff, in virtue of such prior sale, was the owner.” The plaintiff was not in the actual possession of the goods at the time the defendant purchased them and assumed to control them. He could only show that he was entitled to the possession, by proof that he owned them. And the evidence established that they were assigned by the defendants in the executions to Sargent on the 24th day of December, 1858, which was before either party to the action purchased them; and no evidence was given to show that Sargent’s title was not good as against the plaintiff. The judge ignored this fact when he told the jury they might find the plaintiff owned the goods, if they found the goods were those purchased by him at the sheriff’s sale. It seems to me the plaintiff should have shown that Sargent did not acquire any title to the goods under the assignment of the company to him on the 24th day of December, 1858, before he could claim that he obtained title to the same by his purchase under the execution against the company on the 7th day of January, 1859.

I am also of the opinion that this part of the charge was erroneous, for the reason that it prevented the" jury from determining whether the plaintiff’s title was not fraudulent as against the judgment and execution under which Lewis purchased. If the assignment of the 24th of December, 1858, was a nullity, the store in which the goods were must be deemed to have been in the possession of the company until the 1st day of February thereafter, which was twenty-four days after the plaintiff purchased the goods. The plaintiff was a member of the company, and had been its president; and when it was claimed that Sargent was in possession of the store, as assignee of the company, the plaintiff was there as his agent. It cannot be said that the plaintiff’s purchase of the goods was accompanied by an immediate delivery thereof to him, and followed by an actual and continued change of possession. They remained in the same store in which the company deposited them, until they were seized by the execution-creditor of- the company, under whose process the defeúdant purchased the same. I think the true rule is, that the continuance of possession by a defendant, after the sale of his property under an execution, is jprima-faoie evidence of fraud, as well where the property is bid in by a third person as where it is struck off to the plaintiff in the execution. The Supreme Court so held in Fonda a. Gross (15 Wend., 628); and that court decided, in Gardenier a. Tubbs (21 Ib., 169), that where property is bought at a sheriff’s sale by the,plaintiff in an execution, and left in the possession of the defendant, without any good excuse shown, the sale is void as against the creditors of the defendant, notwithstanding that the plaintiff subsequently, and before the levying of an execution on the part of other creditors, reduce the property to his actual possession. But as the rule now is, the judge could not have pronounced the plaintiff’s title fraudulent as against the creditors of the company, under whose execution the defendant purchased the goods ; but he should have submitted the question to the jury, whether the plaintiff’s title was not fraudulent as against that creditor and the defendant. (2 Rev. Stat., 137, § 4; Gardner a. McEwen, 19 N. Y., 123.)

For the error ip the charge of the judge to the jury, the judgment of the Court of Common Pleas should be reversed, and a new trial granted, costs to abide the event.

Denio, Ch. J., and Bosbkrans, J., expressed no opinion.

Judgment affirmed.  