
    [Chambersburg,
    October 18, 1824.]
    BERRY against VANTRIES.
    IN ERROR.
    Counsel must confine their arguments, to the errors they have assigned in the re. cord.
    Trover, lies against the manager of a nail factory, belonging to third persons, for refusing to deliver a machine, put up in the factory during the period of his ma. nagement, by the patentee, who afterwards sold it to the plaintiff; there being no evidence, that the refusal was in pursuance of instructions from his employ, •ers.
    The detention of the machine, to prevent the plaintiff from using it as a model in the construction of other machines, is a circumstance proper for the considera, tion of the jury, in assessing damages.
    Error to the Common Pleas of Huntingdon county, in an action of trover for a patent nail-cutting machine, brought by the defendant in error, Jacob Vantries, against William Berry, the plaintiff in error.
    It appeared, that the machine had once been the property of one Richard Moore, who obtained a patent for it as an alleged invention of his own. It had been set up in the nail factory belonging to John Gloninger and company, where Moore worked it.' He afterwards sold it to Vantries, who demanded it of Berry, who was the manager of the factory. Berry refused to deliver it, and continued to work it, for several months afterwards. Some evidence, which it is not necessary to detail, was given, as to the originality of the invention and the utility of the machine; and also, as to certain repairs and additions, alleged to have been made to it by Berry or his employers, from which he contended, they had an interest in the machine, which gave them a right to retain it, at least until they were repaid for what they had done.
    The presiding Judge (Reed,) charged the jury at considerable length; and an exception was taken, by the counsel for the defendant, to the whole of his charge. The following parts of it, only, are now material:
    
      “ The defendant contends, that, admitting the property to have been duly vested in the plaintiff, by the alleged sale to him by Ri-> chard Moore, the defendant, being the manager of Gloninger and company, or the servant, as the law expresses it, is therefore not liable in this action of trover. There is certainly some nicety in this point. After the fullest consideration that the time has afforded, the court has come to this conclusion, and so charge the jury: That if you are satisfied from the evidence, that the defendant was merely a manager for the company, without any interest in the concern, and acting for them, and the company had the possession of this machine for the purpose of manufacturing nails, at the time of the purchase from Richard Moore by the plaintiff, and they continued in such possession until the time of the demaml spoken of by the witnesses, and the refusal of Berry to deliver it, then such demand and refusal would not be such evidence of conversion, aswould authorize a recovery against the defendant. But if in the original taking there was a trespass, or if in the con - version there was a trespass committed by the defendant, he is personally liable. In that case, the command or authority of the company would afford no excuse. The manner of taking, or of conversion, if any, must be decided, by the jury. Where a trespass is committed in the original taking, it affords evidence of itself, of a conversion. Where there is a trespass in the conversion, it renders the person committing it liable in, trover, although he may commit it to the use of another.”
    
      ic Conversion is the gist of the action; that is, a person having, or obtaining the possession of another’s goods, converts them to his own use, or that of another, in such manner as renders him responsible in this action.
    
      “ The property must be proved to be in the plaintiff, to enable him to recover. The defendant contends, that a part is proved to belong to the company. We now remind you, once for all, that the evidence is for the jury, and not for the court; and if we speak of it, and give our opinion about it, it is only to assist you in weighing it, and not to direct you. I can discover no evidence, that would satisfy my mind, that Gloninger and company had any interest in the property of the machine. It would seem that Moore owned it — brought it from Centre county — had it set up at Gla~ ninge'ds works — was hired by the company to cut nails upon it— that particular parts broke, which were replaced — mended at Glo-ninger’s works; it does not appear at whose particular expense— perhaps with the company’s iron, &c. If there was no contract between the company and Moore, for that purpose, I don’t see how this could give them any title to any part of the machine. If they had an interest in the machine, they ought to have proved it. If Moore was working for hire upon his own machine, the mere mending it by the hands of the company, when it would occasionally break, would not divest him of the property in the whole machine.
    
      “ If, then, you believe from the testimony, that the plaintiff was the bona fide owner of the machine, and that the defendant, either in the taking or in the conversion of it, committed a trespass, and became individually liable to this suit, agreeably to the principles we have stated, then your next inquiry is, as to the amount of damages to be found. In an action of trespass, the defendant is not only liable for the value of the property taken, but to damages for the violence, and proportioned to the degree of outrage. In trover, the trespass or violence is waived, and the party is only liable for the value of the property, and reasonable damages for the detention of it. In this case, there may be some difficulty on this subject. It is for the jury to give such sum as will do justice to both parties.
    
      “ Tho defendant has attempted to impugn the patent right exhibited on the part of the plaintiff. If they had clearly shown that the patent was void, having issued for an invention for which a paterit had already been granted to another, still in full force, it toould lessen the value of the property alleged to have been tortiously withheld by the defendant from the plaintiff. It toould not destroy the right of action, for still the plaintiff might have bought the machine, and no one had a right to interfere but the other patentee. But it would probably be more valuable with the patent, than without it. The evidence, to my mind, is unsatisfactory of the patent being void on the ground stated. The descriptions are admitted to be vague, and the oidy witness examined, had never seen a machine under the patent to Bigelowe. If the defendant took the machine, and kepi it from the plaintiff, or concealed it, so as to prevent him from the use of it, as a model by which to make others, his damage would have been the greater, and the jury may take this into consideration in making up their verdict.”
    
    
      Burnside, for the plaintiff in error,
    was about to argue a point appearing in one of the bills of exceptions, but as he had not assigned any error in that bill of exceptions, and the counsel for the defendant in error, insisted that he should be held to his specifications of error, the court decided, that he should confine himself to the errors he had assigned.
    He then proceeded to argue the .errors assigned, contending,
    1.That the court below erred in charging the jury, that if the defendant was guilty of a trespass, in taking the machine, or in retaining it, as the servant of Gloninger and company, this action could be maintained against him. The machine was in the house, and consequently in the possession of his employers, and therefore the defendant could not be guilty of a trespass in refusing to deliver it. A servant who acts by his master’s commands, cannot be guilty of a conversion, unless he commands him to do a wrong. Where the possession is lawful, a refusal by a servant is no conversion by him. Mires v. Solebay, 2 Mod. 242. Bull. N. P. 44, 47. Jones v. Hart, 2 Salk. 441. The jury were bewildered by the charge of the court, who did not explain to them what a trespass was, or what was the difference between trover and trespass.
    2. There was error in instructing the jury, that there was no evidence that Gloninger and company had any interest in the nail- • cutting machine, and that the parts of it made or repaired at their works, gave them no right to retain it until payment was made.
    3. The court instructed the jury erroneously, in telling them that the defendant was liable for the value of the machine, and damages for its detention. The value alone was the measure of damages.
    4. It was error to say, that if the patent was fraudulent and void, yet no other person than the other patentee, had a right to interfere.
    5. The instruction was likewise erroneous, that if the defendant concealed the machine, so as to prevent the plaintiff from using it as a model by which to make others, his damages would be greater, and the jury might take this into consideration. A machine might be made from the specification and model on which the patent issued.
    
      Shippen and Tod, for the defendant in error,
    having been requested by the court to confine their remarks to that part of the charge, which related to the liability of a servant or agent in an action of trover, argued, that the defendant had been guilty of a tort, in locking up the machine and withholding it from the plaintiff; and that a servant or agent who commits a tort, is personally liable. Exercising dominion over a chattel, whether for one’s own use, or that of ataother, is a conversion. Bristol v. Burt, 7 Johns. 854. In general, all persons who assist, are guilty of trespass or conversion, and one may be liable for a conversion for the use of another. 1 Chitty on PL 67, 154. Bac. Jib. (Trov. and Conv. B.) 11 Johns. 285. Bull. N. P. 40, 47. 2 Jim. Dig. 523. 6 Cr. 226. 2 Saund. 47, (note c.) 3 Bac. Jib. (Master and Serv. K. L.) Perkins v. Smith, 1 PFils. 328. Paley on Agency, 292, 293, 294, 295, 296, 312, 313, 314, 315, 316, 317. 4 Mass. R. 595. Meyer v. Barker, 6 Binn. 228. Snee v. Trice, 2 Bay, 345. Batty v. Carswell, 2 Johns. 48. 3 Bl. Com. 152, 208. The case of Mires v. Solebay, so much relied upon on the other side, has been denied and overruled. 1 Chitty on PI. 12, 1 Wils. 328. 2 Sir. 813.
    
      In reply, it was observed,
    that the cases cited by the counsel for the defendant in error, differ materially from that before the court. In Bristol v. Burt, 7 Johns. 254, the defendant, the collector, detained the plaintiff’s property by force. This is a peculiar case. The machine was placed in the house of Gloninger and company, and the defendant, acting as the agent of that firm, merely refused to permit the plaintiff to take it away. The judge admitted the general principle to be in favour of the defendant, yet expressed himself in such a manner as must have perplexed the jury.
   The opinion of the court was delivered by

Gibson, J.

The law is well laid down in Mires v. Solebay, 2 Mod. 242, that this action cannot be maintained against a servant who has acted by his master’s command, unless it were to do an apparent wrong; and that where the master’s case depends on a title, as where the command is given under the colour of a right, whether valid or not, the servant will be excused; for, as is justly remarked, it would be unreasonable to require the.servant to scrutinize the master’s title, and thus to make him, in all cases, act at his peril. But is this law applicable to the case, as it appeared on the evidence? The defendant below was the manager of a nail factory, which was owned by third persons in partnership. The patent machine, for the conversion of which this suit is brought, was owned, and put up in the factory by the patentee, who after-wards sold it to the plaintiff. The plaintiff demanded it, but the defendant refused to deliver it, and continued to use it as before; and the question is, Whether this was evidence of a conversion by the defendant. There was no evidence, that the refusal was in pursuance of instructions from the owners. Indeed, the manager of an iron works, or of a factory such as this, although he is in contemplation of law the agent of the owners, stands in a relation very different from that of a mere servant. He is not an executive agent divested of all discretionary power, but the locum tenens of the owners, and invested with all their authority. Instead of executing commands, his business is to give them, and to judge of the propriety of every measure taken for the benefit of his employers; and in this, as respects third persons at least, he acts at his peril. If the machine had been put up in the factory before the defendant was employed, which does not appear, it might possibly'have made a different case; for an agent having received the possession of a chattel from his employer, which is •prima facie evidence of title in the latter, is not bound to deliver it to the true owner; and a refusal, thus explained, would be no evidence of conversion by the agent. But if the defendant received this machine from his employers, under these circumstances, it was his business to show it: he attempted to defend himself on the ground of his having acted as an agent, and it was requisite, in addition, to prove, that he acted as an agent under circumstances sufficient to excuse him. As it is, he must be taken to have been fully informed of the extent of his employers’ rights, and to have exercised the same discretion in respect of them, that his employers could have exercised had they been present. The direction of the court was, that if there had been a trespass in the original taking, or in the conversion, the defendant would be liable; and this is undoubtedly true, whether he acted by the direction of his employers or not. It is not pretended, that there was any taking; and whether there was any trespass or tort in the conversion, depended on whether the defendant was ignorant that his employers had no pretence of right, and acted in pursuance of special instructions from them. If the machine was put up in the factory during the period of his being manager, and he acted of his own head in refusing to deliver it, he rendered himself liable; and the burden of proof to the contrary lay on him. I cannot therefore discover error, either in the abstract principle laid down by the court, or in its application to the facts given in ‘ evidence, with respect to which, the direction was as favourable to the defendant as he had a right to require.

The jury were also instructed, that if the defendant detained the machine to prevent the plaintiff from using it as a model in the construction of other machines, that would be a circumstance proper for consideration in assessing damages; and hence an inference, that the jury were left to give vindicatory damages. -Ordinarily, the value of the property is the measure of the damages; but compensation may also be made, for an aggravation of the injury by peculiar circumstances in the taking or detention. Deprivation of the use of this machine, either as a model or in any other way, was a part of the general injury for which compensation was proper; and the extent of the injury, viewed in this light, was certainly not the less, because purposely inflicted. In this aetiou, a jury ought not to give vindicatory damages; but an injury beyond the mere value of the property, is frequently a fair subject of compensation; and on this point I perceive no error. Exceptions have also been taken in minor points, about which, as no error has been clearly established, it is unnecessary to speak; and I am therefore of opinion, that the judgment be affirmed.

Judgment affirmed.  