Thomas Horsefield v. Craft Cost

WESTMORELAND COUNTY. December Term, 1793. Thomas Horsefield v. Craft Cost. TO an action of trover, for a United States certificate of 41l. payable to bearer, brought to March term, 1793, and saying the conversion on 1st October, 1792, the defendant pleaded the general issue, and the statute of limitations. In a suit before a justice of the peace, in September, 1785, judgment had been given against Horsefield, for 3l. 5s. 10d. Cost became security for this debt, and Horsefield having left the country, the justice, about a year after the judgment, at the desire of Cost, who had this certificate of Horsefield in his band, issued an execution, on which Cost gave up the certificate to the constable, for sale, who after the us usual notice, sold it to Cost for 5l. The sale was open and fair, and the price supposed reasonable. No demand of the certificate was made of Cost till January, 1793, when demand was made by Horsefield's attorney. Cost refused to give it, saying he bought it at constable’s sale, and that Horsefield was yet in his debt. Together with the demand, an offer was also made to pay Cost the debt due him by Horsefield. Ross, for the defendant. The material points in trover are property and conversion. This certificate was left for safe custody. A pawn cannot be sold by the private authority of the pledgee; but if he sue, he may take the pawn in execution, and sell it by authority of law. The sale by the constable, and the purchase made by Cost, a public and notorious act, was clearly a conversion, and the statute of limitations, running from that, bars this action. 1 Bac. 237-8. 2 Esp. 359. Brackenridge, for the plaintiff. The property of goods pawned is not altered, but remains in the pawnor, to be redeemed at any time. The statute of limitations does not prevent our recovery. The cause of action accrues only from demand and refusal. No suit could have been brought without such demand and refusal. The sale is the act of Cost, and wholly of his contrivance. You ought to give in damages the value of the certificate at the time of the demand, that is 41l. with interest. Francis v. Nasb. Ca. temp. L. Hardw. B. R. 53. 1 St.L. 95. 10 Co. 56-7. [MAJORITY — President.] President. 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 here 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.