majority">■ JkNGEAHAM, First Judge.

The defendants in this case set up ii^their answer, by way of counter-claim to the plaintiff’s demand, a claim for damages for the non-payment for and conversion of an' iron safe, owned by the defendants, which the court below admitted, and gave judgment for the defendants for a balance thereon.

It can hardly be necessary to discuss the question whether, in a proper form of action, the defendants could recover from the plaintiff the safe referred to. It will be enough, for this case, to concede such right to the defendants; and I think the authorities sustain their claim to it. They never parted with the title, but by an express contract they retained it and refused to allow any title whatever to pass until the safe was paid for.

Under such a contract the persons who had possession of the safe had no title or interest in it which could be the subject of levy, or sale by the sheriff. Andrew v. Dieterich, 14 Wend. 32; Salters v. Evarts, 20 Wend. 273.

The defence was improperly admitted as a counter-claim. By the 150th section of the Code of Procedure, the counter-claim allowed must be a cause of action arising on contract, and existing- at the commencement of the suit. It does not allow a claim for damages for a tort to be used for that purpose. Here the defendants, in tlicir answer, claim to recover damages for the conversion of a safe. This is not a cause of action arising out of *89a contract, but out of a tort. It does not aver any Sale or cié- ' livery of goods, or any contract between tbe plaintiff áhd' 'defendants, nor does tbe evidence show any. On tbe contrary, tbe facts proven were tbe ordinary matters of evidence to establish an action of trover, viz., title to the goods in tbe claimant, and a demand upon and refusal by tbe person in possession to deliver them up.

We bad occasion to examine a similar question at tbe general term, January, 1855, in Drake v. Cockroft (4 E. D. Smith, 34 ; 10 How. Pr. Rep. 377), where a counter-claim for property illegally held by the plaintiff was claimed by tbe defendant, and the court held that no such demand could form tbe subject of a counter-claim.

It is said that the claimants may waive tbe tort, and bring^f-sumpsit for tbe goods. This is undoubtedly true, but still it does not make the claim available as a counter-claim. Because,

1st, It does not arise upon a contract. Tbe cause of action arises in a tort, and no fiction of law can alter its nature, although it may alter tbe remedy. Tbe tort, viz., tbe refusal to deliver the property to tbe owner on demand, is tbe origin. Tbe law allows him, by a fiction, to recover its value by au implied assumpsit; but that does uot make its origin a contract.

2d. The answer does not present tbe claim as founded on contract. It alleges tbe tort, and claims for the conversion. This can never, as a matter of pleading, be called a contract; and if a party may -waive the tort and bring assumpsit, it is sufficient to say that be did not waive the tort, nor set up a claim in assumpsit, but in tort in the present case.

Tbe judgment must be reversed.

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