By the second section of the practice act, (St. 1852, c. 312,) the form of declaration theretofore used in the action of trover is abolished; and by the ninety-first section a form of declaration is prescribed, which the plaintiff in this case has adopted; to wit, “ the plaintiff says the defendant has converted to his own use a box containing one hundred and thirty two *565pairs of shoes, the property of the plaintiff.” But, by the sixth section of the same act, it is provided that the changes in the forms of actions and declarations shall not be deemed to change any of the rules of evidence. It is necessary, therefore, in order to maintain the present action, that the evidence should be such as would have proved a conversion in an action of trover at common law. But the evidence, at the trial, did not prove a conversion, in its legal sense. It proved only that the defendant omitted seasonably to deliver the shoes to the plaintiff. This was mere negligence and nonfeasance, which do not constitute a conversion. Proof that the defendant did some positive wrongful act is necessary to support an action of trover. Bromley v. Coxwell, 2 Bos. & Pul. 438. Ross v. Johnson, 5 Bur. 2825. Severin v. Keppell, 4 Esp. R. 156. A refusal by the defendant to deliver the shoes, after a demand made for a delivery, would have been evidence of a conversion. But no demand was proved. Exceptions overruled.