By the court
The only question made on the argument was upon t^e exception to the last part of the charge. The plaintiffs’ counsel claimed that if, by reason of the refusal of the defendant to deliver the property to the plaintiffs, after an offer to pay the defendant the amount of his lien thereon for the freight, a right of action had accrued to recover the possession of the property, such right of action was not divested by a subsequent unconditional offer by the defendant, before suit brought, to deliver the property; and in support of his position he cited Hanmer agt. Wilsey, (17 Wend. 91.) That was an action of trespass for the taking of a horse by a constable from the plaintiff’s stable, by the defendant’s direction, on an attachment in the defendant’s favor, illegally issued by a justice of the peace. After discovering the error in the issuing the attachment, the constable returned the horse to the stable .from which it had been taken, and gave the plaintiff notice thereof, when the plaintiff said he should not -receive the horse.
The action was commenced by declaration, which was filed *20previous to the return of the horse, but served afterwards. The court held, that the plaintiff was not bound to receive the horse when returned to" his stable. That the plaintiff’s right of action to recover the value of the horse was perfect the moment after it was first taken from the stable, and could not be defeated by any act of the defendant, without the plaintiff’s concurrence. That if the plaintiff had received the horse, it would not have defeated the action altogether, but. would have mitigated the damages to be recovered. The case cited lays down the true rule as applicable to an action of trespass, or under the Code, to an action for the wrongful taking of personal property. Where property is wrongfully taken from the possession of the owner, such taking is a conversion thereof, and the owner is under no obligation to receive it again. The same rule is doubtless applicable to an action of trover, or for the conversion of property, where the original taking was lawful, if the offer to return was after an actual conversion.
But a demand and refusal is only evidence of a conversion. It is evidence from which a conversion will ordinarily be inferred, but not under all circumstances. (Hill agt. Covell, 1 Coms. 522; Hayward agt. Seaward, 1 Moore & Scott, 459.)
The case last cited was an action of trover for a steamboiler and apparatus. The boiler was left by the plaintiffs on the defendants’ wharf, and shortly thereafter the plaintiffs sent a barge to the wharf for it. The defendants refused to deliver it unless £55 5s was paid for landing, clearing, and shipping it on the barge. The plaintiffs then tendered £23 2s., and demanded the boiler. The defendants refused to accept the smn tendered, or to return the boiler.
Afterwards, the plaintiffs’ attorney wrote to the defendants, that he was instructed to commence an action for the detention of the boiler; that the £23 2s. formerly tendered was ready to be paid, on the boiler, &c., being reshipped ; that they had refused the sum tendered, and refused to deliver the property unless £55 5s. was paid, which was an exorbitant sum. The latter requested the defendants to give the name of their attorney, to whom to send the process, if the matter was not immediately settled. *21On the next day the defendants’ attorney wrote to the plaintiffs’ attorney, that the plaintiffs might, at any time, take the boiler, See., and that the defendants would resort to an action to recover the amount due them. On the same day the action was commenced.
The above facts being shown on the trial, and it being further shown that the ¿623 2s. tendered was more than the defendants were entitled to, Lord Chief Justice Tindall, before whom the case was tried, ordered a verdict for the defendants.
On a motion for a rule nisi, that the verdict be set aside, it was insisted, in behalf of the plaintiffs, that the refusal to restore the boiler on the demand made, amounted to a conversion, which could not be purged by any subsequent act of the parties ; and that the letter written by the plaintiffs’ attorney was not a waiver of the right of action vested by the conversion.
But the rule was refused, and the Lord Chief Justice, in his opinion in the case, says, “ A demand and refusal are evidence only, not conclusive, of the fact of conversion. The question here is, whether the plaintiffs ought to have. brought their action after the letter of the defendant’s attorneyand after recapitulating the contents of the letter, his lordship further says, “ After that, it seems to me to be impossible to say that there has been any conversion. The jury could not have found any other verdict.” Mr. Justice Alderson, in delivering his opinion, said, 11A demand and refusal are only evidence of a conversion. The refusal in this case was cured by the offer subsequently made, but before the issuing of the writ, to restore the boiler.”
The decision in the above case was not put on the ground that the letter from the plaintiffs’ attorney was a waiver of the prior demand and refusal, and an offer then to accept the property, but on the ground that the offer to deliver the property contained in the defendants’ letter avoided the effect of the prior refusal to do so.
The above case would sustain the charge in the case under consideration, were it an action of trover, or for the wrongful conversion of property. But this is an action to recover the *22possession of property. It has been held in several cases since the Code, that such an action can now be brought in the cases where replevin would lie, under the Revised Statutes.
It has been said that replevin in the cepit was a concurrent remedy with the trespass, and replevin in the detinet with trover. But this was never so under all circumstances. In the case of Hanmer agt. Wilsey, above cited, if, on the horse being returned by the defendant to the plaintiff’s stable, the plaintiff had accepted it, no one will contend that an action of replevin could have been sustained—as the pláintiff could not have sued to recover possession of property of which he already had possession, and yet it was held that in such case trespass would lie.
The action to recover the possession of personal property is based upon a wrongful detention of it; and such wrongful detention must exist at the time of the commencement of the action.
This was substantially held in the cases of Roberts agt. Randel, (5 Howard’s Prac. Rep. 327,) Brockway agt. Burnap, (12 Barb. S. C. Rep. 347,) and Elwood agt. Smith, (9 Howard’s Prac. Rep. 528.) The case of Brockway agt. Burnap was afterwards reversed on appeal to the general term, and I think rightfully so. (16 Barb. 309.) The action was for the recovery of the possession of a promissory note and other property belonging to the plaintiff.
On the trial it appeared that, before the commencement of the action, the defendant had transferred the property to a third person, in payment of a debt owing by him, and the plaintiff was non-suited, on the ground that the action could not be maintained, unless, at the time of the commencement thereof, the defendant had possession of the property; and the special term denied a motion for a new trial.' But, on the appeal to the general term, it was held, that the fact that, prior to the commencement of the action, the defendant had wrongfully parted with the possession, constituted no defence. Mr. Justice Hand, at the conclusion of his opinion in the case, says, But I prefer to put it upon the broad foundation that, as a *23general rule, the action will lie for any unlawful taking or detainer, although the defendant, before suit, has wrongfully parted with the possession.” In this I fully concur. A person who has wrongfully delivered the property of another to a third person, may be said yet to wrongfully detain it. By permitting him to set up as a defence the fact that he had thus parted with the possession, would be allowing him to take advantage of his own wrong. But when one is ready and willing, and has offered to deliver property to the owner, it cannot be said that he wrongfully detains it. The object of the actions of trespass and trover, prior to the Code, was, and of the corresponding actions since the Code is, the recovery of pecuniary damages, and not of property in specie. •
The object of this action is the recovery of the property in specie; and if, before suit brought, the defendant unconditionally offers to restore the property, the object is already attained, and the suit is wholly unnecessary. Such offer is equivalent to a tender before suit brought. It is true, that in such actions damages, are recovered for the wrongful detention—but such damages are merely incidents to the action. To entitle the plaintiff to the possession of the property pendente lite, he is required to make an affidavit, setting forth, in the present tense, “ that the property is wrongfully detained by the defendant.” (Code, § 207.)
As suggested above, the property in this case was no longer wrongfully detained, after an unconditional offer to deliver it to the plaintiffs. Had they taken the property when it was offered, they yet could have recovered the damages sustained, if any, by reason of the refusal to deliver it when demanded, by an action corresponding with the former action of trover; or, as it is denominated by the Code, (§ 167,) an action for injury to property. (See Hanmer agt. Wilsey, above cited, and Murray agt. Burling, 10 Johns. 172.)
Admitting that in such an action the plaintiffs could, under the circumstances of this case, have recovered the value of the property, that is no answer to the position here taken; as the bringing of such an action would have determined their elec*24tion to recover the value rather than the property itself—and an offer of the property would have been no answer to the action. By bringing this action, the plaintiffs have shown their election to take the property itself, and not its value; and as before suit brought the property was tendered, there was no cause for bringing it.
I think the motion for a new trial should be denied.