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OK, LISTEN UP -- THIS PHRASE IS ONE OF MY PET PEEVES.

First, it's simple. The band owns the instruments. If they aren't returned, it's considered some sort of stealing according to all state laws. If they don't return it, have your band counsel write a nasty letter and report it to authorities if diplomacy in getting the instruments returned fails.

Now, for the phrase itself: it has nothing to do with the real or perceived property rights of a person in actual physical possession of an object. Here's what the phrase really means, from someone who has been there and done that (on an internship exchange program), and bought the souvenir t-shirt:

In the UK, until recent years, solicitors (one of their two kinds of lawyers, along with barristers in court) had the sole authority to manage real estate transactions. Moreover, when a person has a legal problem, the lawyer that a civilian sees first is a solicitor, who then retains a barrister if the case goes to court. So, this phrase is actually describing what most of a young lawyer's time will actually be spent doing -- sorting out property issues and paperwork. The phrase means that for a young lawyer 9/10 of his or her time will be spent researching titles, drafting deeds, meeting with clients, and sorting out disputes as to ownership.

Anglo-American law has NEVER put any superior ownership rights in anyone by the mere fact of physical possession of an object, except over a thief, which these people who don't return instruments are.

If you haven't already, best wishes getting the instruments back.

And now to answer your question: yes. Any instrument checked out for use by a player for the university sponsored community band for which I play has to check it out with the same forms and procedures as for students.

And when I borrowed an Eefer from my undergrad last year (different institution), even though they really didn't have any forms, I had the secretary take all the appropriate information as much to protect me in case the horn went missing, for insurance purposes.

If the person borrowing the horn, just like registering for your library card for checking a book out from the library or any other borrowing situation, does not want to give at least the minimal information and sign that they agree to the terms of use and responsibility, then I would question whether they have enough responsibility to play in band in the first place.

I'll chime in as one who has been through a similar situation, though not with a musical instrument.

If someone acquires property legally, but later either converts it to some use that was not intended, and/or refuses to return it, that is the crime called conversion. Conversion is actually a form of larceny. The victim should get in touch with the police and/or the local district attorney.

Usually something like a religeous conversion happens to a person who thought he could bluff or at worst engage in protracted civil litigation, when the cops show up with the intention of throwing the guy in jail. A moment of watching a jerk get a real comeuppance is quite rare; be sure to relish it!

Cheers,
Allen

P.S. Of course, I agree with the suggestions that there should be at least some simple agreement signed.

I'm recovering one sousaphone Tuesday, and believe I know where another is, but I have no serial #'s, or anything else on the other. I'm not sure if the police will help. Additionally, no one really knows how many other Sousaphones there might be. I've been in the band off and on for 6 years and have only now taken it upon myself to recover the horns.

Actually, conversion is a tort, or a civl wrong. The crime, under the Model Penal Code, adopted in some form by most states, is theft.

As has already been aptly stated, when loaning instruments, have the borrower sign an agreement. It does not have to be fancy but should include some limit on time of possession and language as to who is responsible for loss damage beyond normal wear and tear. The band office responsible for property should maintain a regular inventory of all loaned intsruments and report the status to the board regularly. This is just good common sense.

Having both prosecuted and defended at different times in my "prior life," Alex F is right on the money, so to speak.

iiipopes wrote:Having both prosecuted and defended at different times in my "prior life," . . .

I hope you are feeling better now.

Alex "recovering from a five - hour deposition by looking for wisdom on TubeNet" F.

Alex F wrote:

iiipopes wrote:Having both prosecuted and defended at different times in my "prior life," . . .

I hope you are feeling better now.

Alex "recovering from a five - hour deposition by looking for wisdom on TubeNet" F.

Hey Alex F. -- Thanks. Circumstances much more complicated than I want to talk about. Suffice to say with health and other substantive issues, not now in practice. Maybe again in a few years.

My condolences on your deposition. I hope it went well, for both you and your client, and it probably did, since you are still coherent enough to post here afterwards. I would almost rather subject myself to burning bamboo splints under the fingernails or suffer Chinese water torture than to engage in the practice, process and procedure of civil discovery as it is now structured by modern court rules in almost all states.

If Sean still allowed it, I would post large pictures of beer or other beverages of choice to your health in getting through a long day.

iiipopes wrote:I would almost rather subject myself to burning bamboo splints under the fingernails or suffer Chinese water torture than to engage in the practice, process and procedure of civil discovery as it is now structured by modern court rules in almost all states.

Me, too. I did the expert witness thing, mostly to defend my agency, but later in private practice. Had to quit. I got tired of my other clients having to rearrange their schedules so my work could fit into the gaps between the judge's golf appointments. And I got tired of hearing objections after every question.

Defense attorney: Mr. Denney, is it possible for the light to be green in all directions at once?

Plantiff's counsel: OBJECTION! CALLS FOR SPECULATION! (or some such)

Defense attorney, in a pleasant voice: You may answer now.

Me: No.

Defense attorney: Would you repeat that?

Me: The answer is no.

Defense attorney: So, you are saying that it is not impossible?

Plaintiff's attorney, with a scowl for the video camera: OBJECTION! ASKED AND ANSWERED!

Me (at the same time as above): No, I am not saying that.

Plaintiff's attorney (with more stern expressions): Mr. Denney, please DO NOT ANSWER UNTIL DIRECTED TO.

Defense attorney: Counselor, he's my witness. You'll get your turn...

Sheesh. I average one word for every 200 lawyer words.

Rick "who has answered that question in court a zillion times" Denney

Rick Denney wrote:I average one word for every 200 lawyer words

So you do better than average, by your own admission. Do you give classes?

After having played in several community bands and brass bands over the years, I'm continually amazed that there isn't more care done with the loaning of instruments.

More often than not, there is absolutely nothing documented. The loanee simply walks out the door with the instrument.

When I was equipment manager of a brass band in Utah, that practice stopped. Each person who borrowed a horn from the band, whether it was a baritone or a flugelhorn or a soprano cornet signed a receipt for that instrument and I maintained that information in a database.

That goes back to my Supply Sergeant days, most likely.

In God We Trust - All Others Must Sign

harold wrote:The difference between conversion and theft is usually intent.

No, it is not. The intent is the same: to deprive the true owner of the use or value thereof.

As Alex F stated, the difference is whether it is a civil lawsuit or a criminal charge. Conversion is the civil lawsuit or cause of action for what the guy did. You go sue him to either get the instrument back or a judgment against him for its value.

Theft, on the other hand, or as in the model criminal code (which my criminal law professor in law school helped write) is now simply called stealing, and which now encompasses the old common law terms of larceny, embezzlement, theft by deceit, theft by retention, etc., and is the criminal charge brought by the prosecutor on behalf of the state or other governmental entity or subdivision.

Whether the charge would be considered a felony (prison) or misdemeanor (county jail and/or fine) usually depends on the value, and in a lot of states the value of the instruments would be high enough in aggregate to amount to a felony.

Most people don't know that you can pursue both. You can make your criminal report to a law enforcement agency, who will take the report and along with any investigation, forward the file to a prosecutor, and if the prosecutor in his professional opinion thinks there is enough evidence to prosecute a criminal charge against the guy, he will.

Along with that, if you wanted to hire your own lawyer and sue the guy for either the return of the instrument (if it has some unique, special or historical significance), what was called at common law replevin, and which procedure is now usually controlled by statute with the requirement to post a bond with the court that you are telling the truth in asking for it back, or for a judgment for the money value of it, which is what is usually done, you may, but it's up to you whether you think it's worth the time and expense.

What is confusing is that a lot of times, and usually as a condition of the perpetrator staying out of jail on probation, he may be ordered to return or pay for the instrument, or pay to fix it if it's damaged before recovery, which is called restitution.

But, of course, all this is after the fact. The best way to prevent it is any simple system where the guy, signs that he understands it's a loan that must be returned when he's through using the instrument, that he's responsible for damage exceeding normal wear and tear, and gives you his contact information so you can stay in touch, and you describe on the sheet the horn by make, model, distinguishing marks, and serial number.

Of course, if the guy is really out to steal an instrument, he'll find a way to disappear. But knowing he signed away on the paperwork, he will think twice before doing so.

Any questions?

And "Carbolic Smoke Ball" is actually a real case that we really actually study in contracts class, as part of the section as to what constitutes "consideration" in a contract.

lgb&dtuba wrote:

Wow, I entered this thread with a skull full of mush, and I'm leaving thinking like a lawyer. What did I do to deserve that?

Glad you got the horns back. Go to the nearest 4-year college or university that has a music degree program and ask the music department secretary (notice I referred you to the person who really knows what's going on instead of the person "in charge") what they do when they check instruments out to students. Get a copy of their paperwork, put your community band's name on the top of it, modify it as necessary for the contact information you want, and go from there. No need to reinvent the wheel. You can decide if the instruments are valuable enough to require a deposit.

Regarding insurance: if the band has insurance, that may cover it depending on the terms and the deductible. But as far as the guy is concerned, probably not, as intentional acts are usually excluded from insurance coverage.

Hey Mike S: take in a long weekend, a good gig and a good game, whether in person or on TV. Add beverage of choice. The feeling will soon pass.

Hey Rick D -- true story -- a colleague of mine tried a personal injury auto accident case. Th defense was that the light was green all four ways, which you said was "impossible" in the context of your lawsuit, and which was the conventional wisdom of this case's experts, as well. The plaintiff's lawyer actually bought that actual particular controller from the city and hooked it up in the basement of the courthouse with an alarm to go off during trial if it malfunctioned. In the middle of trial, it malfunctioned and the alarm went off. When everyone regained their composure, he asked the judge to have both side's counsel and the jury accompany him to the room where the traffic controller was set up. It had malfunctioned. All four lights were green. The case settled quickly.

tredonme wrote:I got the horns back, thankfully.

Eupher6 said that he has the musician sign a receipt. Do you use something special like a premade multipart form? Did you get a reciept book from a printer or office store? Or do you use a form that was made up by you or a member of the band?

harold said the insurance adjuster would ask if a report has been filed with the police. You imply your band can afford insurance! Neither of the bands I volunteer with have purchased insurance. How do you put a value on hundreds pieces of out of print music? Or instruments that are older than dirt?

Doesnt the home-owners or auto insurance cover the instrument the musican borrowing from the band?

Is it necessary to collect a damage deposit at any specific valuation of the instrument?

Wow -- this is starting to sound like someone should write a manual....

I just made the receipt up on the computer, had each borrowee sign and date two copies, one of which I kept for the band files and the other he kept.

We never had any theft issues, but I firmly believe in what somebody else said - the attorney I think - that people pretty much take care of something they're signed for.

It seems to me that for an insurance claim to go in on any instrument under any policy, the instrument has to be identified by description, model number, serial number, and with a photo if at all possible.