Horsefield v. Cost

There are three questions :—1 Whether there be property in plaintiff?—2. Whether there be a conversion by defendant ? and,—3. When this converson was ? On these a fourth question may arise,—What damages ought to be recovered ?

There can be no doubt, that a certificate, the property of the plaintiff has been converted to the use of the defendant. But if the defendant has done this in a legal manner, the plaintiff is bound by it. For, to support trover, there must be a wrongful conversion.

If this property had been such as might be taken in execution, as a horse or other chattle, clearly Cost had a right to give it up to satisfy the execution for the satisfaction of which he was security, and to save himself; and the purchase at the constable’s sale would have been legal, and the conversion justifiable. It would be strange if the surety must give up his own goods, when he can give goods of the debtor. And though there be ground to doubt, whether this certificate could be taken in execution, there can be no doubt, that it might be given in execution. Being payable to bearer, it is transferable by delivery without assignment; and its real value being depreciated below the value apparent on the face of it; it seems to have been a proper article to bring to market to ascertain its value. Why then, might not Cost, left with the custody of this certificate, and burdened with the payment of this debt, have given this certificate in execution for this debt, in the same manner, as Horsefield himself might have done ?

But, without saying any thing certainly on this point, we must, on the third question, at what time the conversion was made, clearly decide this case, in favour of the defendant, on his plea of the statute of limitations. Demand and refusal is not a conversion, it is but evidence of a conversion, of which there may be other evidence. Though demand and refusal be frequently the only evidence that can be given of conversion, yet, if conversion can be proved, without proving demand and refusal, they need not be proved. The conversion *154here was at the time of the sale. Since, that time, the plaintiff has suffered more than six years to elapse, without bringing an action ; and this action now brought, after six years, is therefore barred by the, statute of limitations; and you must find for the defendant.

The jury found for the defendant accordingly.