case mire against solebay trover will not lie against a servant for a unlawful  intermeddle with the good of any person by the command of his masler unless  such intermeddle amount to a trespass and then a action of trespass will lie  against the servant though do by the command of the master trover and  conversion on a special verdict the case be this videlicet h be possess of  several sheep sell they in a market to Alston but do not deliver they to the  vendee afterward in that very market they discharge each other of this  contract and a new agreement be make between they which be that Alston shall  drive the sheep home and depasture they till such a time and that during that  time h will pay he so much every week for their pasture and if at the end of  that time then agree between they Alston will pay h so much for his sheep be a  price then also agree on that then Alston shall have they before the time be  expire h sell the sheep to the plaintiff mire and afterward Alston sell they  to one Marwood who bring a replevin against the plaintiff for take of the  sheep and the officer together with solebay the defendant who be modern  servant to Marwood do by his order and in assistance of the officer drive the  sheep to Marwood ground where they leave they the plaintiff demand the sheep  of solebay and upon his refusal to deliver they bring this action against the  servant the question be whether it will lie or not it be argue at the bar that  the action will not lie against the defendant because he have not the  possession of the good at the time of the action bring for he present put they  into his master ground and it be say if a find good and S take they away  before the action bring trover will not lie against a but it be otherwise if  be sell they a roll Abr see also Com dig f a in this case it will have be a  breach of trust in the servant to have deliver the good belong to his master  to another it be true if there be a conversion though the possession be remove  before the action bring yet the action will lie but that be because of the  conversion many case be put where the servant be not liable to a action for a  thing do by the command of his master and where a bailiff who be but a servant  to the sheriff shall not be charge in a false return make by his master cro  Elizabeth so if a smith man prick a horse the action lie against the master  and not against the servant the court before they deliver any judgement in  this case premise these two thing first that it be necessary in trover to  prove a property in the plaintiff and a trover and conversion in the defendant  and it be say by Atkins justice but deny by the chief justice that though good  be sell in a market yet the property be not change till the delivery for which  he cite Keilway but the court hold clear in this case that the first sale to  Alston be defeat by the agreement of the party afterward for when a bargain be  make and all the party consent to dissolve it and other condition be propose  the new agreement destroy the former bargain and the chief justice say that if  a horse be buy in a market for which the vendee be to pay ten pound if the  ready money be not pay the property be not alter but the party may sell he to  another second this new agreement to have the sheep if Alston will pay such a  sum of money at a future day will not amount to a sale and the new property be  change modern er p and consequent the sale by h to the plaintiff before the  day be good and so the property of the sheep be in he modern but the whole  court be of opinion that the action will not lie against the defendant first  the defendant can be guilty of no conversion unless the drive the cattle by  virtue of the replevin will make he guilty but at that time the sheep be in  custodid law and the law do then preserve they so that no property can be  change and if so then there can be no conversion second the action will not  lie against the servant for it be in obedience to his master command though he  have no title yet he shall be excuse and this rule justice Scroggs say will  extend to all case where the master command be not to do a apparent wrong for  if the master case depend upon a title be it true or not it be enough to  excuse the servant for otherwise it will be a mischievous thing if the servant  upon all occasion must be satisfy with his master title and right before be  obey his command and it be very requisite that he shall be satisfy if a action  shall lie against he for what he do in obedience to his master but it be say  the a wine and rider before Bac Abr a servant can plead the command of his  master in bar of a trespass and it be likewise say that in this case the drive  of the cattle by the servant to the ground of his master or a stranger help to  drive they without be request be justifiable three because what be do by the  defendant be do in execution of the process of the law and he may as well  justify as the officer for if he forbid the defendant to have assist he yet  his assist he afterward will not have make he guilty because do in execution  of the law fourthly because it be not find that the servant do convert the  sheep to his own use for the special verdict only find the demand and the  refusal which be no conversion and though it be a evidence of it to a jury yet  it be not matter upon which the court can give judgement of a conversion   and  therefore the jury shall have find the conversion as well as the demand and  refusal like the case in roll Abr in a assize of rend seek upon nul tort plead  the jury find a demand and refusal et such disseizivit it be hold to be no  good verdict for the demand ought to have be find on the land and shall not be  so intend unless find the plaintiff here have set forth in his declaration a  request to deliver then a refusal and conversion too which show that they  ought to be find because distinct thing and the find of the demand and refusal  be only a presumptive not a modern conclusive proof of the conversion and if  the jury themselves know that there be no conversion yet the plaintiff have  fail in his action as if a trover be bring for cut tree and carry of they away  and the jury know that though the defendant cut they down yet they still lie  in the plaintiff close this be no conversion and though it have be strong  insist at the bar that the court shall intend a conversion unless the contrary  appear and be to direct a jury to find the demand and refusal to be a  conversion and the opinion of Doddridge and croak in roll Rep be much rely on  where Adam recover against Lewis forty pound in the court of exon and three  butt of sack be take in execution and the plaintiff deposit twentytwo pound in  the hand of the defendant to prevent the sale of the sack which be to be a  pledge to return it upon request if the defendant be not pay before the next  court day the jury find the debt be not pay and that no request be make to  return the sack but that the plaintiff request the defendant to return the  money yet it be hold by those two justice that the law will supply the proof  of a conversion though it be not find for it shall be presume that the money  be deny to the plaintiff and that the defendant may use it himself and because  no other proof can be make that very denial shall be a conversion in law a  Bulst cro Elizabeth Goulds more style Plowd roll Abr   a so a denial of a rend  seck after demand be a seize much more in personal action where the substance  be find it be well enough Inst a but the court say that notwithstanding this  authority they will not intend a modern er p conversion unless the jury have  find it b hob roll Rep   Com dig e b especial in this case because they ought  to have find it to make the servant liable for if the conversion be to the use  of his master there be no colour for this action to be bring against the  defendant but it ought to be bring against the master whereupon a venire  facias de to make new be pray to help the insufficiency of the verdict the  conversion not be find but the court say it be to no purpose to grant a new  trial unless the plaintiff have a new case and so judgement be give for the  defendant trinity term the twentyninth of Charles the second in the exchequer  sir William Montague Knt chief baron sir Edward turner Knt sir Edward thurland  Knt sir Francis Branston Knt baron sir William Jones Knt attorneygeneral sir  Francis winnington Knt solicitor general