Brown v. Beason

GOLDTHWAITE, J.

We are satisfied that the plaintiff below might properly maintain the action, against every one but the rightful administrator, upon a principle analogous to that which enables the finder of lost property to maintain the same action against every one but the real owner. During the period that administration was not granted, the legal title or real ownership was, in one sense, in no one.

2. The mule sued for was in possession of the defendant, who, on being informed that it was the property of the plaintiff, replied, that he had got or won the mule, or fifty dollars in the mule, from William Beason, who, the evidence proved, was the son of the plaintiff, living with her, and using the mule as a boy in the family would. The rule is, that no demand is necessary in trover, where a conversion can be proved without one ; but the .wrongful assumption of the property in the goods is, of itself, a conversion. —1 Chit. Pl. 179, and cases there cited; Hyde v. Noble, 13 N. H. 494; Lee v. Mathews, 10 Ala. 682. This is the case here, as the language used by the defendant will reasonably admit of no other construction, than that he claimed the right to hold the mule, which was in his possession, because he had got or won it from William Beason, who had no right to dispose of it. What was this, but the wrongful assumption of property? Wc thinlc the court was right in its charge upon the evidence, and this being the case, the charge requested was properly refused ; and, although instructions that the writ in this case operated as a demand, asserted an erroneous legal proposition, yet, as the plaintiff was entitled to recover without a demand, the judgment is not reversible on that ground, and must consequently be affirmed.