The opinion
Metcalf, J.
The court cannot see, in the testimony set forth in this bill of exceptions, any sufficient evidence of a conversion of the plaintiff’s goods by the defendant. The most which that testimony and all legitimate inferences from it prove, seems to us to be, that those goods were put on board the defendant’s schooner, for transportation, and have since been lost. But an action of trover cannot be maintained against a carrier or wharfinger for goods lost by him or stolen from him. Owen v. Lewyn, 1 Vent. 223; Anon. 2 Salk. 665; Ross v. Johnson, 5 Bur. 2825 . Conversion, when applied to the action of trover, imports an unlawful act, and not a mere nonfeasance. A misdelivery of the goods by the *418 defendant would have been a conversion of them, and would therefore have rendered him liable in trover; for it would have been an unlawful act. Devereux v. Barclay, 2 Barn. & Ald. 702; Hawkins v. Hoffman, 6 Hill, 586 . But there is no proof of misdelivery, in the present case. It does not appear where or to whom the goods were delivered, if at all, nor where they ought to have been delivered.
Were, then, the proper instructions given to the jury, upon the reported evidence ? We think not. If the court, by the instructions given, meant only that the jury might find for the plaintiff, if they were satisfied that the defendant assumed upon himself the property and right of disposing of the plaintiff’s goods, (which is Lord Holt’s general definition of conversion, 6 Mod. 212,) then there was not evidence which would warrant the jury so to find. Besides; the instruction that the jury might find a conversion, if the defendant “ had so managed as to interfere with the rights of the plaintiff to, and control over the property, so that the plaintiff had lost the same,” was too indefinite for practical application by the jury, and also had a tendency to mislead them. They might have understood that the defendant was guilty of a conversion, if he had “ so managed ” that the goods were lost through his mere negligence. They should have been more particularly instructed as to the different acts which constitute a conversion, and then have been directed to decide whether any of those acts had been done by the defendant.
If the nonfeasance of the defendant was the cause of the loss of the goods, the plaintiff’s remedy, when this action was commenced, was a special action upon the case, either ex contractu or ex delicto. New trial ordered.