Law Report.

New Zealand Police Gazette, Volume XXV, Issue 16, 31 July 1901, Page 185

Law Report.

K.B. Div. (Lord Alverstone, C.J., 1 1901. and Lawrance, J.) J April 25. WINTER V. BANCKS AND ANOTHER. [•‘Times Law Reports,” Vol. xvii., pages 446 end 447.]

Trover —Servant acting under Master’s Orders—Police Officer acting under Instructions.

The plaintiff having lost a gig, the person in whose possession it was found was tried for larceny and acquitted. The police officer who had taken possession of the gig, acting under the instructions of his superior officer, refused to hand it over to the plaintiff. Held, that the officer was liable in trover.

Judgment in this oase, which had been argued in the previous week, when the Court reserved their judgment, was delivered to-day. The facts appear sufficiently in the judgment.

The Lord Chief Justice said : This is an appeal on the part of the defendant from the judgment of his Honour Judge Gwynne James, who gave judgment for the plaintiff with £4 damages. The action was brought in trover by Mr. Winter to recover the value of a gig alleged to have been converted by the defendants, Bancks and Lings. Judgment was given for the defendant Bancks, but judgment for £4 damages was given against the defendant Lings. It was contended on behalf of the plaintiff that the Judge had rightly found that the defendant Lings had been guilty of conversion in having refused to deliver the gig to the plaintiff, and in having subsequently delivered it to a man named Broderick. It was contended on behalf of the defendant that he had not been guilty of any aot which rendered him liable in the action. The material facts appear to be as follows: On the 17th May the plaintiff bought a gig at Newton fair. Subsequently to the purchase the gig disappeared and was afterwards found in the possession of Broderick. Broderick was prosecuted for the larceny at Liverpool Quarter Sessions, and on the 17th July was acquitted. On the same day Broderick’s solicitor wrote to the police officer in charge at Newton-le-Willow Police-statioD, and to all others whom it might concern, a letter demanding possession and return of the gig. On the 18th July, the next day, the plaintiff’s solicitor wrote to the sergeant in charge at Newton-le-Willows Policestation claiming that the gig was still the plaintiff’s property and asking that it should not be given up to any other person than the plaintiff. On the 20th Mr. Grundy, the ActingSuperintendent, wrote to the plaintiff’s'solicitor stating that it had been decided to return the gig to Broderick at 12 on Saturday, the 21st. On the 31st July the plaintiff’s solicitor wrote to Sergeant Bennet, the sergeant in charge at the police-station, giving him notice of his intention to commence an action on behalf of the plaintiff for the recovery of the gig. The only other material facts proved before the learned Judge were that on the 18th July the plaintiff asked the defendant Banoks for the gig and he refused to give it up, and that upon the 21st the plaintiff again asked Bancks and the defendant Sergeant Lings, who was Bancks’s superior officer, to deliver to him the gig, and that one of them

replied, “ No, I am going to give it to Broderick,” and that on the same day Banoks by Lings’s instructions handed the gig to Broderick. Lings had not been made a defendant when the action was commenced, but he was added as a defendant by consent at the trial as he wasßancks’s superior officer. Lings further stated at the trial that in handing the gig over to Broderick he acted under instructions received by -telephone from his superior officer, Inspector Grundy. Under these circumstances the learned Judge found that after demand by Winter and refusal to comply with it by defendant Lings he (the defendant Lings) handed over the gig to Broderick. No application was made under the lsc section of “The Police Property Act, 1897,” either by the plaintiff or the police for an order of a Court of summary jurisdiction as to the custody of the gig. The case is undoubtedly near the line. It was contended on behalf of the defendant that there was no conversion by the defendant Lings ; that be acted in doing what he did under the instructions of his superior officer, Inspector Grundy ; that he did not intend to deprive the plaintiff of the property in the gig, but was simply handing it back to the person from whom it bad been taken prior to the hearing of the charge at the quarter sessions. The learned Judge found that the gig was in fact the property of the plaintiff, and that as the defendant Lings had taken upon himself to hand the property over, after demand and refusal, he was liable in trover. After careful consideration we have come to the conclusion that the judgment was right. We think it must be taken upon the findings to which we have referred that the defendant Lings was responsible for the custody of the gig, and did, in fact, hand it over at a time when it was the plaintiff’s property, and after the plaintiff had demanded possession. We think the case falls within the principle laid down in the cases of Hollins v. Fowler (L.R., 7 Q. 8., 627, 639, and L.R., 7 H.L., 757), and Stephenson v. Elwell (4 M. and S., 259), and that the defendant, though acting as a subordinate, is responsible. He was party to a dealing with the plaintiff’s property, and acted at his perii. We think, therefore, that the judgment should be affirmed and the appeal dismissed with costs. Mr. Justice Lawranoe concurred.