By the Court,
Savage, Ch. J.The judge erred in his charge to the jury. It had previously been decided in this case, (6 Cowen, 757,) that a demand and refusal is prima facie evidence of conversion, but the defendant may give evidence to negative the presumption of a conversation arising from such refusal on demand; and that on the evidence in this case it should have been submitted to the jury whether there had been a conversion in fact. The judge should also have charged the jury as requested, that trover would not lie if they were satisfied that the goods were lost or stolen, or by accident had been delivered to a wrong person, and that therefore the defendant could not deliver them when demanded. It is very plain from the testimony that the fifth box never went on board the defendant’s boat; and if being thrown down on the dock was a delivery, which we have decided it was not, still one of the boxes must have been stolen or taken away by accident or mistake-by some other person *, and in such case, trover does not lie.
Trover lies not against a carrier for negligence, as for losing a box, but it does for an actual wrong, (Salk. 655;) nor for goods lost or stolen from a carrier or wharfinger; there must be an injurious conversion, something more than a bare omission. (5 Burr. 2825.) Where a carrier loses goods by accident, trover does not lie ; but where he is an actor, and delivers them to a third person, though by mistake, the action lies. (Peake, 49.) It lies also where the defendant refuses to deliver the goods according to contract, he *616having the possession. (1 Taunt. 391. 4 Esp. 157,) But if jogt or stoJgn, so that he cannot deliver them, and his inability does not arise from any act of his own, trover does not lie, though case does. . °. . .
In this case, the presumption is the fifth box was never put on board the defendant’s boat; but if it was, it was afterwards lost or stolen. The defendant had it not, and could not deliver it when demanded; and that inability did not arise from any tortious act on his part, though it may have arisen from his negligence. Trover is therefore not the appropriate remedy.
New trial granted, costs to abide the event.