Leonard v. Belknap. fact that plaintiff's turkeys were with the flock, was not his fault, and could not amount to a conversion. 2 Hilliard Torts, 114. A demand and refusal are not evidence of a conversion, unless the defendant is in such condition that he might have delivered the property if he would. Irish v. Cloyes & Moore, 8 Vt. 32; Rice v. Clark, 8 Vt. 109; Knapp et al. v. Winchester, 11 Vt. 351; Yale v. Saunders et al. 16 Vt. 243; Tinker v. Morrill et al, supra. The demand must apply to specific property, so that the defendant could deliver the same, or it will not be evidence of conversion. 2 Hilliard Torts, 121, 122; Abington v. Lipscomb, 1 Q. B. 776. The finding by the jury shows that the plaintiff was in the wrong when he claimed ten turkeys, and that the defendant was in the right when he offered him five. Defendant did not claim to hold or control plaintiff's five turkeys, and requested plaintiff to take them away. D. C. Denison & Son and J. J. Wilson, for the plaintiff. Defendant was not entitled to his first request. Plaintiff was entitled to his own five turkeys, and defendant cannot compel him to exchange for others; and the jury found that by letting the turkeys out, plaintiff could have had his own five, which finding settles the matter. Defendant was not entitled to his second request, because the jury found that the turkeys could have been identified by letting them out, which finding settles the matter. The shutting up of plaintiff's turkeys by defendant, and retaining them in defendant's possession after the expressed dissent of plaintiff, was a conversion. 2 Saund. 479; Gleason v. Owen, 35 Vt. 590; Tinker v. Morrill et al. 39 Vt. 477; Gragg v. Hall, 1 Vt. 217. The offer of five turkeys, as made by defendant, did not avoid the conversion, for the plaintiff was entitled to his own if they could be identified, and the jury found they could be by letting them out so that they could separate. 2 Saund. 479, note g. The opinion of the court was delivered by Ross, J. The defendant was not entitled to have his first request complied with. The plaintiff had the right to have his own Leonard v. Belknap. turkeys delivered to him. The defendant could not satisfy this right by offering to deliver him five other turkeys, although they might be more valuable than those which the plaintiff owned. The plaintiff's evidence tended to show that he owned more than five turkeys which were in the possession of the defendant. In this state of the evidence, it would have been error in the court to have told the jury as requested, that the plaintiff could not recover because the defendant had offered to deliver him five turkeys which he had refused to receive. It is the duty of the court to adapt its instructions to the jury to the evidence in the case. There was no error in the refusal of the court to charge as first requested. By the second request, the defendant does not claim that he is entitled to the instruction therein desired, unless the jury should find that neither the plaintiff nor the defendant could distinguish the plaintiff's turkeys from the defendant's turkeys. The jury have found that if the turkeys had been let out, the plaintiff's turkeys would have separated from the defendant's, so they could have been identified. Hence, if the defendant was entitled to have had this request complied with, if the jury had found what he assumes in the request, they must find that plaintiff's turkeys could not be distinguished from the defendant's. He has not, as the jury have determined this preliminary fact against him, received any detriment by the refusal of the court to comply with the request. This fact which the jury have found against the defendant, shows there was no such confusion or commingling of the property of the parties, as would defeat the plaintiff's right to maintain trover. Hence, the authorities cited by the defendant's counsel in reference to the effect of a confusion or commingling of goods, are inapplicable. The defendant also claims there was error in the charge of the court as given, in that it made the shutting up of the plaintiff's turkeys by the defendant, against the plaintiff's consent, and a refusal to let them out when requested by the plaintiff only on conditions imposed by himself, a conversion of the turkeys. He claims that such act of the defendant and refusal to act, are but nonfeasances, or a Morgan v. Davis. mere neglect of duty, and do not amount to a conversion of the turkeys. We think that the defendant, by shutting up the plaintiff's turkeys against his will, and by refusing to let them out when requested, was exercising acts of dominion over them-was in fact appropriating them to his own use. He was within Mr. Greenleaf's definition of what acts amount to a conversion, as cited by the defendant's counsel, "exercising dominion over the turkeys, in exclusion or defiance of the plaintiff's right." We think there was no error in the charge of the court. Judgment affirmed. If one claim to recover upon a contract inhibited by statute, such claim will not prevent a recovery in the same action upon other and legal grounds. Where a law of Congress prescribed the fee of agents and attorneys for the preparation and prosecution of a claim for pension, and punished the taking of more, it was held that no more could be recovered, even upon the quantum meruit. ASSUMPSIT. The declaration contained the general counts, and a special count on a contract for prosecuting defendant's claim against the government for a pension as a disabled soldier in the Rebellion, alleging that the plaintiff was not at the time when, &c., a pension agent. Pleas, the general issue and offset. The plaintiff's specification was for his services and money expended in and about the procurement of said pension, $400. Trial by jury, May term, 1873, BARRETT, J., presiding, and verdict for the plaintiff for $120.44 damages. The defendant objected to the plaintiff's offering any evidence, on the ground that the United States statute made provision for the prosecution of such claims, and pointed out the way of obtaining them, and the amount of compensation to be received for such service. The court admitted the evidence subject to objection: to which the defendant excepted. The defendant also objected to plaintiff's specification, and to any evidence being received in re Morgan v. Davis. gard thereto. The court overruled the objection and admitted the evidence; to which the defendant excepted. The plaintiff testified, in substance, that he met the defendant at the hotel in Craftsbury, in the fall of 1870, and made a contract with him as set forth in his special count, to prosecute his claim for a pension against the United States government; that he was to receive for his services and all expenses attending the prosecution of said claim, one half the pension granted the defendant up to the time it was obtained, if he was successful, if not, he was not to receive anything for his expenses or services; that he employed one Loyd, of Washington, D. C., to aid him in the prosecution of said claim, and that Loyd received out of the pension money allowed the defendant, the sum of $25 for his services; that this employment of Loyd was made with the knowledge and consent of the defendant, and that Loyd's name was entered as attorney of record at the department; that he paid out $102, but the greater portion of it was for hotel bills and traveling expenses; that he was employed by firms in Boston, Mass., and spent most of his time during the months of September, October, and November of that year, in Boston. He also testified that he was prosecuting several other claims of soldiers for pensions and bounties at the same time. The defendant testified that the plaintiff was to prosecute his claim and pay all expenses, for the sum of fifty dollars, if he was successful, if not, he was not to have anything for his services or money paid out; that previous to the commencing of this suit, he paid plaintiff said sum of fifty dollars, the receipt of which the plaintiff admitted; that when he and plaintiff were going to Island Pond together to get some affidavits, plaintiff took with him his valises containing samples of goods, and stopped along the route at stores, and tried to make sales. This the plaintiff denied. He further testified that he received as pension money the sum of $745.13, the amount of pension allowed him after deducting the $25 paid Lloyd by the pension agent. Both parties introduced other evidence to support their respective claims, which was received without objection. No evidence was offered on either side, of the amount of labor and expense Morgan v. Davis. necessary for prosecuting a claim for a pension against the gov ernment. The defendant submitted written requests to charge, as follows: 1. "If the plaintiff agreed to and did prosecute the defendant's claim for a pension, he was his attorney, or agent, and his relation in this respect is not changed by his having employed another man to lend his name, under which he prosecuted the claim. 2. "The plaintiff cannot recover in this suit if the jury should find the contract as he claims, that he should receive one half of the pension money obtained, as the same is contrary to the United States statutes making provision for prosecuting claims for pensions. 3. "The defendant is entitled to recover under his plea in offset, all the money paid by him to the plaintiff for the procuring of his pension, over and above the statute price allowed for prosecuting pension claims." The court declined to charge as requested, but charged that if the jury found the contract as the plaintiff claimed it, he would be entitled to recover one half of $770.13, the amount of pension allowed, less the fifty dollars he had already received; if they found the contract as the defendant claimed it, the defendant would be entitled to recover such sum as they should allow on his plea in offset, over and above the fifty dollars paid to the plaintiff, and the $25 paid to Loyd, which was not a proper item to be allowed by way of offset; but if they should find the contract was not as either claimed it, then the plaintiff would be entitled to a reasonable compensation for his services and expenses. To the refusal to charge as requested, and to the charge as given, the defendant excepted. Norman Paul, for the defendant. The plaintiff's right to recover must be determined by the pension laws of the United States in force at the time the contract was made and the service rendered, as his pretended claim arises by virtue of their enactments, which fully point out the method to be pursued and the compensation allowed for prosecuting claims. These statutes are mandatory, and must be strictly followed. The plaintiff admitted that he was at the time he undertook to |