the transaction by which the plaintiff bank acquired title to the draft in question, and no such proof is adduced. It will not do to say, in these circumstances, that the giving of instruction No. 3 was harmless error.

There was some correspondence between T. C. Linger and certain parties in Roanoke, Va., about disposing of the balance of the carload of oats remaining after a part thereof had been sold under the attachment, but the uncontradicted statement of the cashier of the plaintiff bank, when examined as a witness in this cause, is to the effect that whatever Linger did or endeavored to do with respect to the balance of the oats was without any authority from the bank, and was done because he (Linger) was the endorser of the draft and would have to make good to the bank in the event it was unable to collect from the drawees; yet the court, by defendant's instruction No. 4, told the jury that "if they believed from the evidence that the plaintiff bank was the bona fide owner of the draft in question, then they should find a verdict for the plaintiff for the sum of $185.96, with interest, etc., and $1.00 per day for storage on the oats," etc.; in other words, that if the jury believed the plaintiff bank to be the bona fide owner of the draft, the measure of the damages which it could recover in this action was the value of the oats sold in the attachment proceedings and the costs incident to the sale.

It is very true that there was an addendum to the instruction setting forth that the amount named therein, $185.96, was the correct amount due under the theory of the case adopted by the court in the other instructions, to the effect that defendants were liable for the oats sold under the attachment with.damages for the detention of the residue; but this concession on the part of the plaintiff was evidently intended only to facilitate the trial and could not rightly. be construed as a waiver of the plaintiff's right to make proper objections to "the theory of the case adopted by the court;" in fact, the bill of exceptions so states.

The court had, by the three instructions-1, 2 and 5given for the plaintiff, correctly told the jury that when a bill of lading is transferred to a bank and the bank discounts the draft attached to the bill of lading, the bank becomes the owner of the goods covered by the bill of lading until the draft is paid, and this is true although the transaction be not to give the permanent ownership, but to furnish security for advances of money or discounted commer

cial paper upon faith of it; that the law presumes that the transfer of a bill of lading, with draft attached, is for a valuable consideration, and the burden of proof that such was not the case devolves upon the defendant; and that the Ohio Hay & Grain Company, being endorser of the bill of lading in question, and ultimately liable to the plaintiff bank for the payment of the draft, had a right to do what was reasonably necessary to protect the property covered by the bill of lading and preserve its value. If, therefore, the jury found that the plaintiff bank was the bona fide owner of the draft and, by assignment, the bill of lading attached thereto, the attachment of the entire carload of oats by the defendants was plainly illegal, and they thereby became answerable in damages to the plaintiff for at least the amount of the draft which was drawn upon the value of the property covered by the bill of lading, and the court was not justified in limiting the assessment of the damages which the plaintiff was entitled to recover to practically one-fourth of the value of the shipment.

"One is liable in an action of trespass for causing an attachment against a debtor to be levied on a consignment of goods in the custody of a common carrier, the title to which was in a third person to whom the bill of lading covering the shipment had previously been duly assigned by such shipper." Farmers, &c., Bank v. Allen-Holmes & Co. (Ga.), 49 S. E. 816.

In that case the levy of an attachment was upon a shipment of corn under similar conditions obtaining when the levy of the attachment complained of in this case was made at the instance of the defendants, and in its opinion the court said: "This unlawful invasion of the plaintiff's right. gave it a cause of action, and if, as alleged, the property was wholly lost by reason of the illegal levy and sale, the plaintiff would be entitled to recover at least the actual value of the corn. This was alleged to be the price which the defendant agreed to pay Heile & Sons on delivery at destination." The question in this class of cases is not whether the plaintiff was divested of all or part of his property, but whether the wrongful seizure thereof amounted to a conversion of the property. Where such is the case the owner of the property has several remedies, among which are, an action for damages resulting from the wrongful seizure, and the action of trover, in each of which actions the

measure of recovery would be practically the same, viz., the value of the property converted with interest, etc.

"Where the conversion has taken place, the owner is not bound to receive back the property if tendered, either before or after suit, and if he does take it back this does not bar his suit, but goes in mitigation of damages. Where the conversion is complete, the injury suffered of course is the value of what is converted." 2 Cooley on Torts, p. 878. See also note to same authority, p. 879.

"A plaintiff in execution procuring a levy to be made on a stranger's goods is guilty of conversion, whether he takes possession or not. Conversion is any wrongful exercise or assumption of authority, personally or by procurement, over another's goods, depriving him of their possession." Hale v. Ames, 2 T. B. Mon. 143, 15 Am. Dec. 150; St. George v. O'Connell, 110 Mass. 475, 28 Am. & Eng. Enc. L. (2nd ed.), 691, et seq.

In McPhetus v. Page, 22 Atl. 101, the opinion says: "Any act of dominion wrongfully exerted over property in denial of the owner's right, or inconsistent with it, amounts to a conversion."

In the case in judgment, the defendants procured the levy of an attachment on the entire carload of oats, removed and sold a part and abandoned the residue, thereby not only interfering with, but wrongfully depriving the plaintiff bank of the possession of the property, and prevented a consummation of its sale and delivery to purchasers and consignees thereof.

The contentions of defendants, first, that their acts were not wrongful and did not amount in law to a conversion of the property attached; and, second, that because certain parties other than the plaintiff bank, i. e., T. C. Linger and A. W. Howard, and Poindexter & Hopwood, at Linger's instance, made efforts to sell the residue of the oats, the bank is to be held as unqualifiedly recognizing its ownership of the residue of the oats, and therefore responsible for whatever loss has resulted from delay in disposing of the oats, or from the manner in which they were disposed of, are wholly without merit.

"After the drawer of a draft has parted with the title thereto to his bank, no subsequent admissions of his can prejudice the bank's right." Greenburg Nat'l Bank v.

Syer & Co., supra.

The instructions asked by the plaintiff at the trial, Nos. 6 to 11, inclusive, which were refused, as well as instructions Nos. 1, 2 and 5 given, expounded the law applicable to the facts which the evidence tended to prove, and in accordance with the views expressed in this opinion, therefore, the court erred in refusing instructions Nos. 6 to 11, inclusive.

For the foregoing reasons, the judgment of the Corporation Court of the city of Roanoke is reversed, the verdict of the jury set aside, and the cause remanded for a new trial not inconsistent with this opinion.

Reversed.

WESTERN UNION TELEGRAPH COMPANY v. DAVIS.

(Staunton, September 9, 1912.)

1. STATUTES-Extra-Territorial Force-Agreement.-No extra-territorial force can be given to a statute by agreement of the parties affected.

Companies-Code,

2. IDEM-Construction-Telegraph sec. 1294-h (6). Where a message was delivered to a telegraph company at a point in this State, addressed to a person at a point in another State, but who lived in this State at a place where by custom and regulation it was the habit of the telegraph company to deliver messages so addressed, and the message was duly transmitted to the company's office at the place of address: Held, that there can be no recovery under section 1294-h (6) of the Code for delay in delivering the message to addressee.

Error to Corporation Court of city of Bristol.

Reversed.

Geo. H. Fearons, Donald T. Stant, Phlegar, Powell, Price & Shelton, for the plaintiff in error.

N. P. Oglesby, G. M. Warren, for the defendant in error.

WHITTLE, J.:

This is an action under Va. Code, 1904, sec. 1294-h (6) to recover the penalty of $100 prescribed for delay in delivery of a telegram.

The message was delivered to the company at 9:40 P. M. at its office in Glade Spring, Virginia, addressed to J. L. Davis, care of Susong Building, Bristol, Tenessee, and was received at that office at 9:46 P. M. of the same day, but was not delivered to the addressee, who lived in Bristol, Virginia, until 3:55 P. M. of the following day. The com

pany maintained an office in Bristol, Tennessee, but had no office of any kind in the adjoining city of Bristol, Virginia. It is true that both by regulation and custom the company's habit was to deliver messages from the Tennessee office to addressees in Bristol, Virginia, but of course no extra-territorial force can be imparted to the delivery statute by agreement of parties.

Upon these undisputed facts, the sole question for our determination is whether or not the company can be penalized by authority of the Virginia statute for neglect of duty with respect to the delivery in this State of a message from its office in another State.

The case is readily distinguishable from Western Union Telegraph Co. v. Reynolds, 100 Va. 459; Same v. Hughes, 104 Va. 240; and Same v. White, 113 Va.

6 Va. App. 321. Those were all transmission cases under section 1294-h (5), where the duty rested upon the company promptly to transmit the messages from one Virginia office to another office in the same State; and for negligent failure to discharge that duty the company was subjected to the statutory penalty, though the line, in part, passed through the territory of another State. Those cases fall within the influence of decisions of the Supreme Court of the United States in Western Union Telegraph Co. v. James, 162 U. S. 650, and Western Union Telegraph Co. v. Commercial Milling Co., 218 U. S. 406. The controlling principle of that line of cases is clearly stated in Western Union Telegraph Co. v. White, supra, at page 323, as follows: "It is not sought in this case to give effect to our statute outside of the limits of this State, as was held could not be done in the Chiles case, 214 U. S. 274; but the object of the suit is to give effect to the statute and to impose the penalty for the company's failure to transmit the message to Fredericksburg. If the message had never been transmitted at all from Staunton, it is clear under the case of Western Union Telegraph Co. v. Crovo, 221 U. S. 364, the company would have been liable. If the point of delivery had been in Washington city and the message had been duly transmitted to that place and never delivered, then there could be no recovery, as decided in the Chiles case, supra. If the message had been duly relayed and transmitted from Washington city to Fredericksburg and the only default had occurred there in failing to deliver the message to the sendee, it