delivered the opinion of the Court. — The following questions are made in this case : 1st. Whether the plaintiff can maintain an action of trover for a note given by him to defendant under the circumstances detailed in this case ? 2nd. Whether, upon the evidence of the judgement rendered on the note, the plaintiff was so far precluded by the judgement, that he could maintain no action against the defendant for the injury sustained ?
The case states that this note was given to the defendant on the exchange of horses, but was to be returned to the plaintiff if he rescinded the contract for the exchange, and that the plaintiff did rescind that contract. The note in question went into the possession of the defendant lawfully, but, on the rescinding the contract, it was his duty to return it to the plaintiff when demanded. *102After this rescinding, he held it in trust for the plaintiff, aud any disposition of it contrary to this trust, and to the injury of the plaintiff, would be fraudulent on the part of the defendant. He did dispose of it contrary to his engagement, received its value, and the plaintiff was sued thereon and paid the amount. The case then shews a note in the possession of the defendant, which by the contract was to be returned to the plaintiff, and, of course,' if it was a subject of property, it became the property of the plaintiff ; a fraudulent conversion of it by the defendant to his own use, and a consequent injury to the plaintiff. But the defendant says that the plaintiff cannot maintain any action against him for this injury, but should have resisted the payment of the note. This certainly comes with an ill grace from him. After he had retained the note, and refused to deliver it to the plaintiff in violation of good faith; and, in violation of his agreement, had transferred it to a third person, and the plaintiff had been sued and had paid the contents, it is very ungracious in the defendant to tell the plaintiff that this note was of no value, that he might have successfully resisted the payment, or any recovery thereon, and leave the person, to whom the defendant had fraudulently transferred it, to seek his remedy against him. We are satisfied the law is not fraught with this absurdity, and that it is not competent for this defendant to dictate to the plaintiff the course he shall pursue to obtain a recompense for this fraudulent transaction. The defendant, by disposing of the note, determined its value. He considered it of value, and, as such, converted it to his own use *, and the principles of the law will justify the plaintiff in considering it in this same view, and will give to him a compensation for this conversion.
It is admitted that an action of trover will lie for a note against a third person ; but it is questioned whether it will lie to determine y question between the maker and the payee. If there was no authority against maintaining this action, we should feel disposed to sustain it. But the authorities fully warrant the action. In the case of Towle, administratrix, vs. Lovet, (6 Mass. 394,) an action of trover for the title deeds of the estate belonging to the intestate was supported. In the case of Parry vs. Frame, (2 Boss. & Pull. 451,) an action of trover was maintained for a lease delivered to the defendant, for the purpose of procuring an assignment drawn of the same, and who refused to redeliver it on demand or accept of an assignment. In the case of Lucas vs. Haynes, reported in 2 Lord Raymond, 871, and also in 1 Salk. *103130, trover was brought by the payee of a bill of exchange against the person on whom it was drawn, and with whom it was left for acceptance. In Murray & Ogden against Burling, (10 Johns. 172,) an action of trover was brought by the makers of a promissory note against an indorsee who had received it for the purpose of procuring it discounted for the benefit of the makers, but had passed it away for his own benefit, and which the plaintiffs, the makers, had paid and taken up. This last case is directly in point in favor of this action.
Bates and Chipman, for plaintiff. Phelps, for defendant.On the second question made, we are of opinion that if the judgement rendered on the note had any effect on the rights of these parties, an exemplification of the record should have been produced; and the court would not decide upon the legal effect of that judgement without higher evidence of it than the mere statement of the witness on his cross examination, that a judgement had been rendered. It was objected at the trial, that this was not sufficient evidence that such judgement had been recovered. And the defendant should have produced a regular copy of the record, if it was of any importance to him to have it in the case. As this disposes of all the questions which have been raised, it is unnecessary to enquire what would have been the effect of the judgement if it had been in evidence. At the jury trial I was of opinion that the fact of a suit having been brought on the note, and a judgement thereon, was of no other importance than as it might affect the damages to be recovered. If this action can be maintained, the right of the plaintiff to the action was complete when the defendant wrongfully sold the note, and the plaintiff' might then consider the transaction as a conversion by the defendant, to the value of the full sum for which the note was given. He might either voluntarily pay the note, or he might suffer it to be sued and pass into judgement, and pay the amount thereof on execution, if he had resisted the payment, and defended a suit brought thereon, and in that way avoided the payment of the note, or any part thereof, it would have reduced the damages to which he would otherwise have been entitled ; but would have had no other effect. And I still retain the opinion which I then formed.
The judgement ofthe county court is affirmed,