In Wellington v. Wentworth, 8 Metc. 548, a cow going at large in the highway without a keeper, joined a drove of cattle, in May or June, 1842, without the knowledge of the owner of the drove, and was driven into New Hampshire and pastured there, during the season with the defendant's cattle, and in the autumn returned with the drove and was delivered to the plaintiff; and it was held that there was no conversion. Chief Justice Shaw says, however, that "it was the plaintiff's own fault that his cow was at large in the highway, and entered the defendant's drove." Yet if the defendant had driven the cow to New Hampshire and pastured her there with his. cattle, knowing that she belonged to the plaintiff and intending to deprive him of her, there can be no doubt that it would have been a conversion.

Parker v. Lombard, 100 Mass. 405, and Loring v. Mulcahy, 3 Allen, 575, were both decided upon the ground that the defendant either assumed to dispose of the property as his own, or intended to withhold the property from the plaintiff.

Nelson v. Whetmore, 1 Rich. 318, was an action of trover for the conversion of a slave, who was travelling as free in a public conveyance, and was taken as a servant by the defendant; and the decision was, that to constitute a conversion the defendant must have known that he was a slave.

In Gilmore v. Newton, 9 Allen, 171, 85 Am. D. 749, the defendant not only exercised dominion over the horse, by holding him as a horse to which he had the title by purchase, but also by letting him to a third person. The defendant actually intended to treat the horse as his own.

If a person wrongfully exercises acts of ownership or of dominion over property under a mistaken view of his rights, the tort, notwithstanding his mistake, may still be a conversion, because he has both claimed and exercised over it the rights of an owner; but whether an act involving the temporary use, control or detention of property implies an assertion of a right of dominion over it, may well depend upon the circumstances of the case and the intention of the person dealing with the property. Fouldes v. Willoughby, ubi supra; Wilson v. McLaughlin, ubi supra; Nelson v. Merriam, 4 Pick. 249; Houghton v. Butler, 4 T. R. 364; Heald v. Carey, 11 C. B. 977.

In the case at bar, the use made of the horse by the defendant was not of a different kind from that contemplated by the contract between the parties, but the horse was driven by the defendant, on his return to Worcester a longer distance than was contemplated, and on a different road. If it be said that the defendant intended to drive the horse where in fact he did drive him, yet he did not intend to violate his contract or to exercise any control over the horse inconsistent with it. There

is no evidence that the defendant was not at all times intending to return the horse to the plaintiff according to his contract, or that whatever he did was not done for that purpose, or that he ever intended to assume any control or dominion over the horse against the rights of the owner. After he discovered that he had taken the wrong road, he did what seemed best to him in order to return to Worcester. Such acts cannot be considered a conversion.

Whether a person who hires a horse to drive from one place to another is not bound to know or ascertain the roads usually travelled between the places, and is not liable for all damages proximately caused by any deviation from the usual ways, need not be considered.

An action on the case for driving a horse beyond the place to which he was hired to go, was apparently known to the common law a long time before the declaration in trover was invented. 21 Edw. IV, 75, pl. 9. Exceptions sustained.

WHERE A BAILEE WILLFULLY AND INTENTIONALLY DRIVES A HORSE AT SUCH AN IMMODERATE RATE OF SPEED AS TO SERIOUSLY ENDANGER ITS LIFE, THE BAILOR MAY TREAT THE ACT AS A CONVERSION AND MAINTAIN AN ACTION OF TROVER

WENTWORTH v. McDuffie

48 N. H. 402 (1869)

Trover for a horse. The jury found that plaintiff hired a horse and buggy to defendant to drive from Rochester to Dover. Defendant drove the mare to Hoit's, two miles away from the journey agreed upon, and drove her immoderately on a very hot day, so that when she returned to plaintiff's stable she was exhausted and sick, and in about half and hour died. Verdict for plaintiff.

SMITH, J. (Omitting a question of evidence.) Taking into account the nature of the evidence on which the plaintiff relied, the gist of the instructions excepted to would seem to be contained in the last clause, and we are not inclined to think that the jury were misled by the remarks which preceded that clause.

The jury were instructed that "if the defendant willfully and intentionally drove the mare at such an immoderate and violent rate of speed as seriously to endanger her life, and he was at the same time aware of the danger, and her death was caused thereby, it would be such a tortious act as would amount to a conversion, and trover might be maintained; though it would be otherwise if the fast driving was the result of mere

negligence and want of discretion, he not being aware that it endangered the safety or life of the mare."

Two established principles of the law of trover tend to support this instruction. The first is the settled rule in this State, that if the owner of a horse let him to be driven to one place, and the hirer voluntarily drives him beyond that place to another, this is a conversion of the horse, for which the owner may maintain trover against the hirer. Woodman v. Hubbard, 25 N. H. 67, 57 Am. D. 310. This doctrine does not seem to proceed upon the idea that the driving the horse beyond the place named in the contract is conclusive evidence of the bailee's intention to convert the animal to his own use, but rather upon the ground that such use of the property is so substantial an invasion of the owner's rights, and so inconsistent with the idea of an existing bailment, that the bailee cannot reasonably object to the bailor's treating the bailment as terminated thereby or to his proceeding against the bailee for a conversion. "A conversion consists in an illegal control of the thing converted, inconsistent with the plaintiff's right of property;" Perley, J., 25 N. H., p. 71. It has been said that, "if the thing be put to a different use from that for which it was bailed," the bailor may maintain trespass or trover, but that "any misuse or abuse of the thing bailed, in the particular use for which the bailment was made, will not enable the general owner to maintain trespass or trover against the bailee:" Redfield, J., in Switt v. Mosely, 10 Vermont 208, p. 210, 33 Am. D. 197. But we are unable to perceive any just ground for the distinction as stated in these broad terms. If a horse is hired upon the usual implied contract that he is to be driven at a safe rate of speed, the act of the bailee in willfully and intentionally driving the horse at such an immoderate rate of speed as he knew would seriously endanger the life of the horse is at least as marked an assumption of ownership and as substantial an invasion of the bailor's right of property as the act of driving the horse at a moderate speed one mile beyond the place named in the contract of hiring. The probability of injury to the horse is much greater in the former case, and the cruel treatment of the horse is certainly as inconsistent with the continued existence of the contract of bailment as the use of the horse for a different journey.

The other established principle which tends to support this instruction is the doctrine that the willful destruction by the bailee of the thing bailed is a conversion; see Morse v. Crawford, 17 Vermont 499, 44 Am. D. 349. If the death of the mare was caused by an act willfully and intentionally done by the bailee with knowledge on his part that the life of the mare was thereby seriously endangered, we think that, so far as the civil remedy is concerned, the bailee may be regarded as having

willfully destroyed the mare. If the property is destroyed by the bailee's willful act the bailor's right to maintain trover cannot depend upon the time when the destruction is consummated. "It can make no difference whether the destruction takes place immediately on the commission of the act, or is the necessary result of it." If the bailor had seen that his mare was about to be destroyed by the bailee's willful act he would have been entitled to terminate the bailment, and retake his property if he could do it without force. When the bailor learns that an act has already been done which will result in the death of the mare, can he not elect to consider the bailment as having been rescinded by the act at the moment of its commission?

It may be urged that the principles referred to as sustaining the instructions are themselves arbitrary exceptions engrafted on the law of trover, and that they therefore do not furnish a foundation upon which to reason from analogy. If we are to look merely to the form of the declaration, very few of the actions of trover now brought would be sustained. The legal fictions which prevail in reference to trover are based upon authority; and however arbitrary the established principles may be, we know of no other test by which to decide any question pertaining to the form of action which has not already been conclusively settled by authority.

The right of a bailor to maintain trespass or trover against a bailee in a case like that supposed in the instructions is a question not conclusively settled by authorities directly in point. Rotch v. Hawes, 12 Pick. 136, 22 Am. D. 414, seems favorable to the defendant. McNeill v. Brooks 1 Yerger 73, is cited on the same side, but an examination of the opinion. shows that the court did not have in mind such a willful and intentional misuse as that described in the instructions given in the present case. Swift v. Moseley, 10 Vermont 208, 33 Am. D. 197, contains a dictum favorable to the defendant, but the case itself, is not in point; see also Harris, J., in Parker v. Thompson, 5 Sneed 349, p. 352. On the other hand Maguyer v. Hawthorn, 2 Harrington 71, tends to sustain the plaintiff as do also Campbell v. Stakes, 2 Wend. 137, 19 Am. D. 561; and Nelson v. Bondurant, 26 Ala. 341, reaffirmed in Hall v. Goodson, 32 Ala. 277: see also James v. Carper, 4 Sneed 397.

We think the instructions were correct.

Judgment on the verdict.

WHERE AN OWNER HIRED A HORSE TO D, AND IT BECAME SICK AND D PLACED IT IN THE HANDS OF L TO FEED AND CARE FOR, THE OWNER IS LIABLE FOR THE EXPENSES INCURRED BY L IN CARING FOR THE HORSE

LEACH V. FRENCH

69 Me. 389 (1879)

Assumpsit for board, keeping and burial of a horse.

BARROWS, J. The case, as stated in the report, is that the defendant owned the horse, for the board and keeping of which while sick, and the expense of its removal when dead, plaintiff brings this action, under the following circumstances:

Defendant let the horse to one Devereux. The horse became diseased and sick while thus let, and Devereux left him with the plaintiff for care and cure. While plaintiff was keeping the horse defendant wrote him informing him that he (defendant) owned the horse and inquiring about its condition, and saying that an uncle of Devereux would pay the bill. After the horse died plaintiff's attorney wrote defendant demanding payment of the bill. Defendant answered, "Please not make any costs on it (the bill) as I will call and settle the same soon." Plaintiff's attorney thereupon wrote defendant saying he would wait. After waiting awhile, in pursuance of this arrangement, payment not being made, this suit was brought. Defendant denies his liability to pay for the expenses of his horse thus incurred, and contends that there was no valid consideration for his express promise to do it. Unless there was an original liability on his part by reason of the circumstances and acts of the parties while the plaintiff was furnishing the care and board of the horse, it may well be doubted whether a valid consideration is shown for the promise in defendant's letter to the attorney.

We do not find it necessary to decide that question, for as the case is stated, we think, upon natural and legal presumptions, it is made to appear the plaintiff might well charge the keeping of the horse to its owner, and the defendant would be liable for the bill without any express promise.

The first inquiry is, what were the respective rights and duties of the defendant and Devereux under the circumstances disclosed?

"If a man hires a horse," remarks Lumpkin, J., in Mayor of Columbus v. Howard, 6 Ga. 213, "he is bound to ride it moderately and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable food." Thus doing, if the animal falls sick or lame, without any want of ordinary care on the part of the hirer