Suppose he had written that he could not deliver them, because they had been stolen from him, would this relieve him from the necessity of proving' that fact? There is sufficient evidence of conversion; the defendant must make proof of the matters of defence alluded to in his letter.
The defendants then offered to prove:
1. That the goods, so received by them from the plaintiffs, were the property of one Cain, and not the property of the plaintiffs.
2. That, upon a foreign attachment issued against Cain, in the state of Connecticut, said property had been taken out of his hands, and that the proceedings, on said writ, were still depending undetermined, in the.courts of that state.
The plaintiff insisted that the defendant, being his servant and agent, and having received the property for him to manufacture, could not assail his title, and, on the contrary, was bound to assert and defend it. He also insisted that the pendency of the foreign attachment ought to have been pleaded in abatement, and was not matter in bar, and on this last point relied on Bowne v. Seymour, 9 Johns. *363221; Walsh v. Gallagher, 12 Johns. 99; Embree v. Hannon, 5 Johns. 101; 4 Cow. 521, and 8 Cow. 315; Com. Plead. 2, Oc. 5; 3 East, 166.
Jones, C. J. I think, with plaintiffs’ counsel, that the defendants cannot raise any question about plaintiffs’ title. I differ from him, however, in relation to the foreign attachment. I think it is a complete answer to the conversion relied on, and that, with reference to the evidence on that part of the case, it is a clear bar.
The defendant then produced the writ of foreign attachment and return, duly certified according to the provision of the act of congress, in relation to records, and plaintiffs insisted that the issuing of it, and proceedings under it, ought to have been proved upon a commission. That it was mere process and not a record, and could not be esteemed such until it had received the final action of the court. That a plea or any other distinct part of the proceedings in a cause might, upon this principle, be certified as a record, contrary to the spirit of the act.
Jones, C. J. I have much doubt on this point, but will receive it, leaving the plaintiffs to their remedy.(1)
Verdict for defendants.
Cook and Anthon, for plaintiffs.
Shufeldt and Whiting, for defendants.
Refusal to deliver is not conversion, but evidence merely of conversion, and, therefore, may be rebutted. 2 Saund. 47, c.
Thus, in trover for some timber, which defendant found on his premises, *364and which had been deposited there by the permission of the servant of a former occupier.
The plaintiff, to whom the timber belonged, demanded it of the defendant, the latter said: “If you will bring any one to prove it is your property, I will give it you, and not else.”
Lord Ellenborough. This is a qualified refusal, and no evidence of conversion. Green v. Dunn, 3 Camp. N. P. 215, notes.
The refusal must be absolute, amounting to a denial of plaintiff’s title to the possession, and not a mere excuse or apology for not delivering the goods at present. Severin v. Kessell, 4 Esp. N. P. 156, and notes.
How far, in this case, it was the duty of the defendant to defend the property against the attachment. Quce et vide Smith v. Goss, 1 Camp, N. P. 282.