
    Bristol against Burt.
    NEW-YORK,
    Nov. 1810.
    To constitute a conversion sufficient to support 'rover, it is not necessary to show a manual taking of the tiling" in question ; -nor that the defendant has appplicd it to his own use ; hut theassuming the right to dispose of it, or exercising a dominion over it, to the exclusion,or hi defianceof the '•'plaintiff’s right, ts a conversion».
    THIS was an action of trover, brought to recover the value of 95 barrels of potashes. The cause was tried at the Onondaga circuit, the 7th June, 1810, before the Chief Justice.
    
    The defendant was, in 1808, and still is, the collector of the port of Oswego, on the south side of lake Ontario. In May, 1808, the defendant was applied to, to know whether he would grant clearances for ashes for the port of Sackett’s Harbour, which is the next adjoining port in the county of Jefferson, and on the south side of the lake, and adjacent to the province of Canada. The defendant answered that he did and should continue to grant clearances; and the defendant was informed of the intention of the plaintiff to bring ashes to Oswego, for the purpose of sending them to Sackett’s Harbour. About the first July, the plaintiff sent 95 barrels of potashes to Oswego, which we.re put into the store of a Mr. Wentworth, who gave the plaintiff a re- ° e 1 ceipt for them. The plaintiff applied to the defendant for a clearance, in order to transport the ashes to Sackett’s Harbour; but the defendant refused to grant it, alleging as a reason for his refusal, that though he did not suspect the plaintiff intended to send the ashes to a British port, yet he believed that the collector at Sackett’s Harbour would not do his duty, and that the ashes would be sent from thence to a British port. The defendant at the same time promised the plaintiff, that if he did not receive instructions to the contrary from the secretary of the treasury, within a fortnight, he would give a clearance to the plaintiff’s ashes. After the expiration of that time, the defendant still refused to grant the clearance, though he admitted that he had received no new instructions from the secretary of the treasury, nor had he received any instructions forbidding such clearances. He assigned no other reason for his refusal, than his suspicion that the collector at Sackett’s Harbour would not do his duty, and persisted in refusing a clearance, though the plaintiff offered to give bonds that the ashes should be delivered at Sackeft’s Harbour. The plaintiff then expressed his desire to take the ashes up the river; but the defendant declared that the plaintiff should not take them from Wentworth’s store, unless he gave bonds for double the value of the property, to carry the ashes to Rome, in the county of Oneida, and leave them there, while the embargo continued; that the property was under his jurisdiction and charge; that he had a control over all the stores and wharves where ashes were placed, and had employed armed men; and that he had the right to prevent their removal, and would exercise it. Two armed men were stationed near Wentworth’s store during* two nights, and an armed sentinel was constantly on duty, night and day, at the public store of the collector, within ten rods of Wentworths store, and in view of it? „ „ , , , ‘ ’ - for the purpose of observing boats, and preventing the removai Gf property. The defendant ayowed his determination not to permit any ashes to be reproved from any of the stores in Oswego. The defendant demanded the ashes in question froip Wentworth, who refused to deliver them; but in qrder to prevent the defendant from proceeding to extremities, and to satisfy him, Wentworth entered into an agreement with the defendant, not to deliver any property from his store, without the permission of the defendant.
    In the autuipn of 1808, the defendant gave a general permission to remove any ashes from Oswego up the river, and 13 barrels of the potash of the plaintiff, were delivered by Wentworth to his order.
    On the 13th February, 1809, the defendant gave a written permit to carry the remaining 82 barrels of po.tr ashes from Oswego to Rome, in the county of Oneida, requiring of the person to whom they were delivered by order of the plaintiff, a written report of the ashes, and an oath that the statement was true, and that he did not intend to violate .the law.
    It was proved, that when the plaintiff applied to the defendant for a clearance to Sackett’s Harbour, potashes were worth at that place 180 dollars per ton, and that the expense of transportation was 4 dollars per top. That the price of potashes on the 21st July, 1808, in the city of New-Tork, was 173 dollars per ton, but would not sell at Salina, in the county of Onondaga, for more than 150 dollars. That when the plaintiff received the ashes, the price of them, in the city of Albany, was 137 dollars and 50 cents, and the expense of transportation from 25 to 30 dollars per ton.
    The Chief Justice charged the jury, that in his opinion, there was sufficient evidence of a conversion by the defendant) and that the plaintiff was .entitled to re-¿ever For the difference in the value of the ashes at the time when he demanded a clearance, and at the time he received them. And the jury found a verdict for the plaintiff, for 1,472 dollars and 20 cents.
    A case was made for the opinion of the court, which it was agreed might be turned into a special verdict.
    
      Gold, for the plaintiff, cited 6 East, 538. 6 Term, Rep, 298. 1 Burr. 31.
    
      Cady, contra, cited 5 Bac. Abr. 279. Trover, (G.) Bull. N. P. 44. 3 Salk. 284.
   Per Curiam.

The only point made in this case is, whether there was sufficient evidence of a conversion to justify the verdict.

There were declarations and acts of the defendant united to form a control over the plaintiff’s property. The very denial of goods to him that has a right to demand them, says Lord Holt, in Baldwin v. Cole, (6 Mod. 212.) is a conversion ; for what is a conversion but an assuming upon one’s self the property and right of disposing of another’s goods ? And he that takes upon himself to detain another man’s goods from him without a cause, takes upon hSmse the .right of disposing of them. The bare denial to deliver is "not always a conversion, as in Thimblethorpé’s case, (cited in 2 Bulst. 310. 314.) where a piece of timber was left upon the land of the defendant by the lessee at the expira» tion of his term, and he was requested to deliver it and refused, but suffered the timber to lie without intermeddling with it. The reason why this was held not to be a conversion was, that there was no act done or dominion exercised ; but in the present case there were the highest and most unequivocal acts of dominion and control over the property; not only by claiming jurisdiction over it, but in placing armed men near it, to prevent its removal. This fact js, of itself, a conversion. It is intermeddling with the property in the most decisive manner, and detaining it for months in the storehouse. It was therefore bringing a charge upon the plaintiff; and this, says Mr. Justice Buller, in Syeds v. Hay, (4 Term Rep. 260.) amounts to a conversion. ther the case of M'Combie v. Davies, (6 East. 538.) nor the anonymous case in 12 Mcd. 344.. were so strong as this, and yet th~ conversion was maintained. It was assuming the dominion of the property which was made by Lord Ellen rough the test of the conversion, though the property in that case Jay not in the defendant's, but in the king's wareS house. The definition of a conversion in trover, as given by Mr. Gwillim, the editor of Bacon, and now a judge in 1)idia, applies precisely to this case. (6 Bac. Abr. 6774 "The action being founded upon a conjunct right of perty and possession, any act of the der,ied. NEW-YGR!~. Nov. 1810 KENT V. Welch. 1~iotion denied, A. KENT agaim~l WELCh. THIS was an action of covenant. The dec1aratiot~ stated, that by a deed, dated the 3d of IUàrch, 1784, and lii irn action on a covenant con~ 1~ined in a deed ylich the grantor (`gave,grantcd,?' &c. and engaged to -warrant and defend the land against all claims, &e. it was held, that no action enuld~be maintained either on the implied Or exprese covenant, without alleging and proving an eviction; and that the express warranty qualified and s~cstrained any implied covenant of seisin arising from

We are, therefore, of opinion, that the motion to set aside the verdict must be denied.

1~iotion denied  