#### Nichols *v.*Newsom.

J-From Hertford. J

1’yrcliasei- at Sheriff’s sale. — Trover—Where one purchases at Sheriff’s sale a quantity of lightwood, set as a tar-kiln, he has a right, unless forbidden by the Defendant wlio owns the land, to go peaceably after the sale and remove it; because the article is too bulky to be removed immediately after the sale, and the law is the same of all cumbrous'arlicles, suchas corn, fodder, stacks of hay, &c ; hut if Defendant forbid tire purchaser to go upon the land, he cannot then go, for Ms entry then could not be a quiet or peaceable one, and tlie law will not permit ¡j^nan forcibly to enter upon another’s possession, to assert a private right which lie may have to an article there. The purchaser may bring *trover*for the lightwood, and the refusal of the owner to let him go on the land to take it, is evidence of a *conversion,*though he may never have touched tlie liglit-wood, and it should be left to the jury.....,,-

This was an action of trover for a quantify of light-wood set as a tar-kiln on the Defendant’s land, but not banked or turfed. Upon the trial it appeared, that a *303judgment bad been obtained against the Defendant, on which an execution was issued and levied on the said lightwood, which was duly advertised and sold and struck off to the Plaintiff as the highest bidder. The Plaintiff afterwards applied to the Defendant for liberty to bank, turf, and burn the kiln as it then stood, which liberty the Defendant refused to grant. The Plaintiff then demanded the lightwood, and proposed to bring his team and cart it off the Defendant’s land ; whereupon the Defendant replied, if the Plaintiff came on his premises for that purpose, he would sue him. There was no evidence of an actual conversion, and at the time the suit was commenced, the kiln remained in the same situation in which it was when purchased by the Plaintiff. The Plaintiff was permitted to take a judgment for twenty pounds, the value of the kiln, with leave to the Defendant to have the verdict set aside and a non-suit entered, provided the Court should be of opinion the Plaintiff was not entitled to recover in this action, on the foregoing facts, arid on motion of the Defendant, the case was transmitted to this Court for the opinion of the •Tudges. On this case, the Court were divided in opinion.

Seaweli, Judge — To support an action of trover, it is necessary for the Plaintiff to prove property and right of possession in himself and a conversion by the Defendant. It is admitted in this case, that the Plaintiff has shewn property and a right of possession in himself, but it is insisted by the Defendant, that he has *committed*no conversion. This leads to the inquiry, “What is a conversion ?” Conversion, in legal acceptation, means the wrongfully turning to one’s use the personal goods of another, or doing some wrongful act inconsistent with or in opposition to the right of the owner. ■ It is a malfeasance, and the plea to the action is “not guilty.” This malfeasance, like all others, is capable of proof in divers ways, as by the confession of Defendant, or when called *304upon to surrender the property, his refusal affords a prc-sumption that he has converted it to his own use «• for * otherwise he would not refuse. But this presumption, ]iicc a]j others, vanishes when the contrary appears.

In the present case, the Plaintiff calls upon the Defendant for permission to dig earth and cover the kiln; the Defendant refuses* and he not being hound to grant the permission, it is admitted that this refusal does not amount to a conversion. The Plaintiff then formally asks a permission which the law had already afforded to him, and which Defendant could not abridge or withhold. The Defendant refuses and threatens the Plaintiff with a suit, in case he should enter upon his premises and take away the lightwood *;*and the parties, no doubt, believed that it was in law necessary to obtain such permission, to prevent the Plaintiff from becoming a trespasser. This menace, it is said, amounts to a conversion, and it is the policy, of the law to do away the necessity the Plaintiff was reduced to, of taking his property at the risque of a suit though without foundation. However stupid the conduct of the Defendant hath been, yet when we recollect, that in legal understanding, conversion is *an act,*and that in all instances where the words of a party are given in evidence, it is with a view of inferring such act, it would seem irresistibly to follow that where there is clear evidence that no act has been done, it is equally as clear there has been no conversion. What has the Plaintiff to complain of? Has the Defendant injured his property ? Has he used it in any way, or exercised any act of ownership inconsistent with the Plaintiff’s right ? He has not. He has merely threatened to sue the Plaintiff if he took the lightwood away, or entered upon his premises for that purpose, and it is admitted that no such action would fie. How then does this differ from a case where one man says to another, *<s*if you plough your own horse, I will sue. you for it ?” The owner of the horse, would *305incur the same risque by ploughing him a fter this menace, that the Plaintiff would have incurred by entering upon the Defendant’s land and taking away the lightwood, and yet it would hardly be said that this menace was a conversion of the horse.

But a case has been cited from S *Mod.*170, wherein trover for a tree, upon demand and refusal, the Plaintiff recovered. When that case is examined, it will turn out to be this : Trover was brought for fourteen *Lemon Trees in Boxes*which were placed by the Plaintiff in the *Garden*of Lord Brudenell, by his Lordship’s consent. The premises were afterwards sold, , and after passing through many hands, they came to the Defendant, who refused to deliver the Lemon Trees to the Plaintiff upon request. These trees were placed in a garden which was walled, and which Plaintiff could not enter unless Defendant would open the gate, and out of which he could take the trees only through the gate. The Defendant by his refusal *"withheld,*from the Plaintiff (he enjoyment of his fruit trees. But it is worthy of notice that the conversion was not made a point in the case. In the present case, the lightwood was as accessible to the Plaintiff as tothe Defendant, and has not in any manner been withheld from him.

In 5th *Bac. Abr. 279, tide Trover,*it is stated, that a demand and refusal of a piece of timber or other cumbrous article, when it has remained untouched, will not support an action of trover. Independently of this authority, I am of opinion, from the reason of the case, that this action cannot be supported and that the rule for a new trial should be made absolute.

Hat-Tj, Judge. — The lightwood which is the subject matter of this action, was legally levied upon and sold to the Plaintiff. That sale gave the Plaintiff a title to it. The kiln of lightwood could not be delivered and carried away like most other kinds of personal property.; *306¡t was cumbrous and could only be removed iii tbc manner proposed by the Plaintiff'. If so, lie had a right to ... ,- remove it in that manner, and the Defendant had no {.¡g(,t t0 forbid him. Of course, the Plaintiff’s right was not impaired by the Defendant’s threat to sue him if he entered upon his land and removed the lightwood ; his physical power to do himself justice still remained. Had that been opposed, (hen there would have been a conversion. Had the Defendant sued the Plaintiff for carrying away the lightwood, he could not have recovered, because the Plaintiff only did that, which the law gave him a right to do, that was, to enter on the Defendant’s land and carry away property to which he had acquired a title by a purchase under an execution, property which could be removed in no other way. The threats which Defendant made was of no legal significance, and ought to have been disregarded by the Plaintiff. If the light-wood had been within the Defendant’s enclosures and admittance had been'denied, the case might have been different j but being in the woods and no barrier interposed, the idle threat of Defendant could not amount to a conversion, and the rule for a. new trial, I think, ought to be made absolute.

Lowb.ee, Judge,

delivered the opinion of the majority of the Court :*

The action of trover is the legal remedy to recover damages for the unlawful conversion of a personal chattel. The lightwood was a chattel of this description, and the purchase under the execution vested in the Plaintiff a right to it. The lightwood, however being bulky, and too cumbrous to be immediately moved from the Defendant’s land on which it was sold. The law will presume, unless by some express and unequivocal act of the debtor such presumption should be destroyed, that it was left there by bis consent and in his possession until the no-*307cessary arrangement could be made for taking it away. In all cases where the consent of one man becomes ne- . cessary, and without which another cannot conveniently enjoy his property, the law presumes such consent to be given, unless the contrary expressly appears. Whenever therefore a man purchases heavy articles at a Sheriff’s sale, such as corn, fodder, hay stacks, &c. which it is not presumable he is prepared immediately to take away, he may, if not prohibited by the debtor, return in a peaceable mannerand lawfully enter upon the freehold, or into the enclosures of such debtor, or other person on whose land such articles were sold for the purpose of taking them away. But in the present case, such presumption ceased to exist the moment the Defendant expressly prohibited the Plaintiff from entering upon his freehold and threatened him with a suit, if he did enter. After such express prohibition, the entry of the Plaintiff could not be a peaceable and lawful one. ‘The law will not permit one man to enter upon the possession of another for the assertion of a mere private right, which he ¡nay have to an article of personal property, against the express prohibition of him in possession ; such permission would be attended with consequences very injurious to the peace of society. 1 We therefore think, that the refusal of the Defendant, as stated in this case, was such evidence of a conversion as was proper to be left to a Jury. The conduct of the Defendant reduced the Plaintiff to the necessity of asserting his right by an action at law. “If a man give leave to have trees put into his garden, and afterwards refuse to let the owner take them, it will be a conversion.” *Com. Big. action on the*case, *Title Tro-ver E.*This case differs from that to be found in *Gilbert’s Law of Evidence*262, and in 5lh *Bac. Mr. Trover B ;*where there was a refusal to deliver a beam of timber ; for here was not only a refusal to *deliver,*but a refusal to suffer the Plaintiff to *take*the iighlwood into his possession and cart it away, coupled with a declara*308tion that if the Plaintiff entered upon his freehold for that purpose, he would sue him. The Plaintiff was under no necegs¡ty enter upon the Defendant’s land and thereby incur the trouble and expense of a law-suit. We therefore think the rule for a new trial should be discharged.

*

 Taylor, Chief Justice, Locke, Lowrie, and Henderson.