Pilsbury v. Webb

By the Court,

The possession by the servant, of the goods of the master, while the employment continues, is the possession of the master, and not of the servant. The servant as such, has no possession, and no interest in the goods. When the servant quits the employ of the master, if he takes away the master’s goods without' his consent, it is a conversion, for which an action will lie. The taking under 'such circumstances being a conversion, of course no demand is necessary before bringing the action. The servant is not like a bailee, who has a special property in the subject of the bailment, and a right of possession, which he can *215maintain, even against the general owner, so long as the bailment continues and the bailee keeps himself within it. But even in the case of a bailment, where the possession is out of the owner, if the bailee misuse the property, in contravention of the trust, it is a conversion for which an action will lie. (Edwards on Bailments, 114, 313.) For instance, if one hire a horse to go to a particular place and go beyond, it is a conversion, although his possession, in the first instance, was lawful. (Story on Bailments, § 413. Rotch v. Hawes, 12 Pick. 134. Wheelock v. Wheelright, 5 Mass. Rep. 104.) This being the rule in regard to bailees, it would seem to be very clear that a servant taking the master’s goods away upon leaving his service, is guilty of an unlawful taking, which is of itself a conversion. After that, his possession is not that of a servant, but of a wrongdoer. Even if the defendant was a bailee and not a servant of the plaintiff, the taking or removal, under the circumstances, would, I think, be tortious:

Smith, Knox and Johnson, Justices.]

The judge was not asked to submit the question to the jury, whether the buggy wagon in question was not made by the defendant on his own account, and as his own property : and, upon the evidence, I think there was no such question in the case for submission. I am of the opinion, therefore, that the judge at the circuit was right, and that the order granting a.new trial at special term should be reversed.