#### HOELL AND CORY *vs.*JAMES L. PAUL.

TrYhere there lias been a temporary exchange of articles, there is no principle that requires that the one shall be returned to the former owner before the other can be recovered.

AotioN oe teovee, tried before Saunders, Judge, at tbe Pali Term, 1856, of Pitt Superior Court.

Tbe action was brought for tbe conversion of a refrigerator.

One James had temporarily exchanged the refrigerator in question with Mrs. Worthington, and sold it, while in her possession, to one Bell, who sold it to tbe plaintiffs. The refrigerator which Mrs. Worthington put in the possession of James, and which was her property, went from James’ possession into that of Bell, and from his into tbe possession of the plaintiffs, who wore still in possession of it when the demand in this case was made, and the suit brought. The plaintiffs had never claimed the refrigerator which they had received of Bell, (originally Mrs. Worthington's,) nor had the defendant, or any one else, ever demanded it.

The defendant’s counsel requested the Judge to charge the jury, that on a mutual exchange of goods for an indefinite period,! the party seeking to terminate the bailment must offer to surrender those in his possession belonging to the other party. Ilis Honor declined to do so, but told the jury that if they believed .that the plaintiffs had demanded the refrigerator of the defendant, before suit was brought, and that the defendant had .refused to deliver it up, and liad converted it to his own use, the plaintiffs were entitled to recover. Defendant excepted to this charge.

*76The jury found a verdict for the plaintiffs. Judgment and appeal.

*Rodman,*for plaintiffs

No counsel for defendant in this Court.

Battle, J.

The defendant does not deny that the article, for the conversion of which suit was brought, belonged to the plaintiffs, but his counsel contends that a return, or offer to return, the article which they had taken upon a temporary exchange with him, is in the nature of a condition precedent to their right of recovery. No authority is cited for this position, and we are not aware of any adjudicated case, or principle, upon which it can be sustained. The transaction between the parties, or rather between those to whose rights they succeeded, created a mutual bailment which each had a right to put an end to by making a demand of the thing bailed. If the article in the possession of one of the parties had been lost or destroyed, without any default of the bailee, it certainly would not have j ustified the other party in detaining the thing exchanged, because the former could not return, or offer to return, his chattel. The doctrine contended for by the defendant would be extending the principle of lien beyond any former precedent, and further than there is any necessity for its existence. 'What might have been the result had the plaintiffs claimed the defendant’s property, or had even refused to deliver it on demand, it is unnecessary to decide, for they had never done either. So far as appears, the defendant could, at any time, have regained the possession of his refrigerator, and his neglect to do so, gave him no right to refuse on demand to deliver up that of the plaintiffs.

Pee CueiaM. Judgment affirmed.