The opinion of the court was delivered by

The defendant was not entitled to have his first request complied with. The plaintiff had the right to have his own *609turkeys delivered to him. The defendant could not satisfy this right by offering to deliver him five other turkeys, although they might be more valuable than those which the plaintiff owned. The plaintiff’s evidence tended to show that he owned more than five turkeys which were in the possession of the defendant. In this state of the evidence, it would have been error in the court to have told the jury as requested, that the plaintiff could not recover because the defendant had offered to deliver him five turkeys which he had refused to receive. It is the duty of the court to adapt its instructions to the jury to the evidence in the case. There was no error in the refusal of the court to charge as first requested.

By the second request, the defendant does not claim that he is entitled to the instruction therein desired, unless the jury should find that neither the plaintiff nor the defendant could distinguish the plaintiff’s turkeys from the defendant’s turkeys. The jury have found that if the turkeys had been let out, the plaintiff’s turkeys would have separated from the defendant’s, so they could have been identified. Hence, if the defendant was entitled to have had this request complied with, if the jury had found what he assumes in the request, they must find that plaintiff’s turkeys could' not be distinguished from the defendant’s. He has not, as the jury have determined this preliminary fact against him, received any detriment by'the refusal of the court to comply with the request. This fact which the jury have found against the defendant, shows there was no such confusion or commingling of the property of the parties, as would defeat the plaintiff’s right to maintain trover. Hence, the authorities cited by the defendant’s counsel in reference to the effect of a confusion or commingling of goods, are inapplicable.

The defendant also claims there was error in the charge of the court as given, in that it made the shutting up of the plaintiff’s turkeys by the defendant, against the plaintiff’s consent, and a refusal to let them out when requested by the plaintiff only on conditions imposed by himself, a conversion of the turkeys. He claims that such act of the defendant and refusal to .act, are but nonfeasances, or a *610mere neglect of duty, and do not amount to a conversion of the turkeys. We think that the defendant, by shutting up the plaintiff’s turkeys against his will, and by refusing to let them out when requested, was exercising acts of dominion over them — was in fact appropriating them to his own use. He was within Mr. Greenleaf’s definition of what acts amount to a conversion, as cited by the defendant’s counsel, “ exercisitfg dominion over the turkeys, in exclusion or defiance of the plaintiff’s right.” We think there was no error in the charge of the court.

Judgment affirmed.