¶1The defendant, Hayes, was a mere depositary of Lake, and returned the money to her bailor without knowledge that it was not his, and there was no demand and refusal. The plaintiff must therefore rely on a re-delivery, tortious in its nature as to him. He claimed in his first request as to the charge, that a re-delivery of property to the bailor by such a bailee, having “ reasonable or probable cause to believe either that it was stolen, or that he came improperly or dishonestly by it, or that it did not belong to him,” is a tortious conversion in respect to a then unknown owner. There is no such doctrine in the law.
¶2None of the cases cited sustain the proposition. Those from Swift were actions between bailor and bailee, where there had been a wrongful delivery to a third person, or a wrongful use, or wrongful appropriation of the property. Of the same character was Lockwood v. Bull, 1 Cow., 322, Syeds v. Hay, 4 T. R., 260, and the cases cited from 4 Bingham. McCombie v. Davies, 6 East, 538, was a case of wrongful detention, without re-delivery to the bailor, by a pawnee of property wrongfully pawned by an agent. Thorp v. Burling, 11 Johns., 285, was a case of wrongful taking from the agent of the owner. Upon a question whether the cartman employed by the defendants was liable as a co-trespasser, it was holden that he was, as he was in no sense a public officer, and there were suspicious circumstances to put him on inquiry. But that cartman was a servant of the wrongful takers, and not a bailee. Snow v. Peacock, 3 Bing., 406, was trover by the owner of a stolen bank note against a purchaser from the thief, under suspicious circumstances, who had appropriated it to his own use, and refused to deliver it up—a very different case from this. Clark v. Whitaker, 19 Conn., 319, was a case of tortious talcing and tortious appropriation both. None of these or the other cited cases are in point.
¶3On the other hand, there are authorities to the effect that to constitute a conversion in such case, there must be a wrongful intention to aid in depriving the owner of his property, and that re-delivery to the bailor, even with knowledge that *536the property was stolen, but without such wrongful intention, will not be a conversion. Simmons v. Lillystone, 8 Exch., 442; Loring v. Mulcahy, 3 Allen, 575; Polley v. Lenox Iron Works, 2 id., 182, and cases cited; Fouldes v. Willoughby, 8 M. & W., 540. The charge on this point was favorable to the plaintiff.
¶4The charge of the court in relation to agency was unexceptionable. It did not appear that the defendant, Hayes, carried on a general business as depositary, or that Jenkins was her general agent in that or any other business. If he was, the charge was not objectionable. In relation to the re-delivery of the money in question, Jenkins was a special agent, if agent at all, and the defendant, was not chargeable with any knowledge Jenkins might have possessed. Moreover, the plaintiff had not shown, nor was there any evidence in the case tending to show, that Jenkins had any such knowledge. The claim was therefore hypothetical, and nedd not have been noticed, and the charge, if wrong, did not prejudice the plaintiff.
¶5A new trial is not advised.
¶6In this opinion the other judges concui’red; except Granger, J., who did not sit.