Francis H. (Francis Hermann) Bohlen.

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Law. 65 (S. Car. 1844) ; Rice v. Clark, 8 Vt. 109 (1836) ; Knapp v. Winchester,
11 Vt. 351 (1839).

It is immaterial that the defendant, out of possession, has denied the
plaintiff's rieht to the goods and has stated that he would not give them up
even if he had them. Smith v. Young, 1 Camp. 439 (1808). one to whom_ a
bankrupt had assigned a lease, when it was demanded by the assignee said,
'he would not deliver it up, but it was then in the hands of his attorney.
who had a small lien upon it for monev due him. The defendant would have
been guilty of a conversion if it had been in his power; but the intention is
not enough.' In McDonald v. McKinnon. 104 Mich. 428 (1895), it was held
that a refusal to deliver a certificate of stock by one who, though actually hav-
ing it in his possession, thought it had been huro^d did not constitute a con-
version.



MCENTEE V. THE NEW JERSEY STEAMBOAT CO.. 173

MctNTEE V. THE NEW JERSEY STEAMBOAT CO.
Court of Appeals of N civ York, 1871. 45 N. Y. 34.

Appeal from the General Term of the Supreme Court in the
second district.

The action was brought against the defendants for the conver-
sion of chattels claimed lay the plaintiff. The defendants, as com-
mon carriers between Albany and New York, received from Mr.
Guyer, at Albany, and carried to New York, in 1868, several bundles
of sash and blinds addressed to "]\IcEntee," New York. After
these arrived at New York, the plaintiff claimed them, and gave evi-
dence tending to prove that he demanded the goods and tendered
the charges, and that the agents of the defendants refused to deliver
them.

The defendants gave evidence somewhat in conflict with the
plaintiff's statement, and also gave evidence to show that other
property of a like character had on former occasions been received
by Mr. Guyer in New York, and that the goods were first inquired
for as the goods of Guyer, and that the defendant supposed that
they might belong to him, and that they offered to deliver them to
the cartman of the plaintiff and to the plaintiff upon the production
of any paper showing ownership or authority to receive them, and
that the defendants were at all times ready to deliver the goods to
the plaintiff upon the production of any reasonable evidence identi-
fying him as the consignee and owner. The judge ruled and de-
cided that the only question for the jury was whether the freight
money was tendered, and restricted the counsel in summing up to
that question only, and charged the jury, ist. That when the de-
fendants receive goods, the consignor putting them on a steamboat
to be carried to New York without consigning them to any particu-
lar individual, the steamboat company was authorized to deliver
them to any person who calls for them ; and, 2d. That common car-
riers have no right to insist on any person proving ownership, for
they are not restricted as to the delivery, and incur no liability
whatever in that respect.

To these several rulings the defendants excepted. The counsel
for the defendants also made several requests to the judge to
charge, which were refused, and exceptions taken to the refusal.

A verdict was rendered at the Kings Circuit in favor of the
plaintiff" for the value of the property, upon which the judgment
was entered and affirmed on appeal by the Supreme Court, and
from the latter judgment the defendants have appealed to this
court.

Allex, J. The defendants were charged for a conversion of
the goods upon evidence of a demand and a refusal to deliver them.
If the demand was. by-lbe-pe«;ow - entitled to receive them, and the
refusal to deliver them ^v^as-absolute ami uuqualilied, tlie conversion
was sufficiently proved, for such refusal is. ordinarily conclusive evi-
dence oFa conversion ; but if the refusal was qualified, the question



174 MCENTEE V. THE NEW JERSEY STEAMBOAT CO.

was wheth er the qualification was reasonable ; and if reasonable and
jnade in good faith, it was no evidence of a conversion. (Alexander
V. SoKthey, 5 B. and Aid., 247 ; Holbrook v. Wright, 24 W. R., 169;
Rogers v." Weir, 34 N. Y., 463; Mount v. Derick, 5 Hill 455.) JLi.

at^4iie time of t he demand^ a reasonable excuse be made in good

faith for the non-delivery, the goods being evidently kept with a
view to deliver them to the true owner, there is no conversion^

This action is not upon the contract of the carriers, but for a
tortious conversion of the property; but the rights and duties of
the defendants as carriers are, nevertheless, involved.

The defendants were bailees of the property, under an obliga-
tion to deliver it to the rightful owner. Xhey__woukL Jia^e:. beeJU
. liahlp had they delivered the goods to a wrong person. Common
carriers deliver property at their peril, and must take care that it
is delivered to the right person, for if the delivery be to the wrong
person, either by an innocent mistake or through fraud of third
persons, as upon a forged order, they will be responsible, and the
wrongful delivery will be treated as a conversion. {Hawkins v.
Hoffman, 6 Hill, 586 ; Pozuell v. Myers, 26 Wend. R., 290 ; Devereux
V. Barclay, 2 B. and Aid., 702; Guillanme v. Hamburgh and Am.
Packet Co., [3 Hand] 42 N. Y., 212; Duff v. Budd, 3 Brod. and
Bing., 177.) The duties of carriers may be varied by the dififering
circumstances of cases as they arise ; but it is their duty in all cases
to be diligent in their efforts to secure a delivery of the property
to the person entitled, and they will be protected in refusing deliv-
ery until reasonable evidence is furnished them that the party
claiming is the party entitled, so long as they act in good faith and
solely with a view to a proper delivery. The circumstances of this
case, the very defective address of the parcels, and the omission of
the plaintiff to produce any evidence of title to the property or iden-
tifying him as the consignee, justified the defendants in exercising
caution in the delivery, and it should have been submitted to the
jury whether the refusal was qualified, as alleged by the defendants ;
and if so, whether the qualification was reasonable, and was the true
reason for not delivering the goods. The judge also erred in his
instructions to the jury as to the duty of the defendants, as common
carriers, in the delivery of goods. Xhexm_^ not properly, or with- .
_Qiit incurring liability to the true jowner, deliver goods to any person
who calls for them, other than the rightful owner. The judgment
must be reversed and a new trial granted, costs to abide event.

All the judges concurring, judgment reversed and new trial

ordered.^



"^ Accord: Solomon v. Dawes, 1 Esp. 83 (1797) ; Green v. Dunn, 3 Camp.
215n (1811) ; Watt v. Potter, 2 Mason 77 (Circ. Ct. U. S. 1820), per Story,
J.; St. John v. O'Connell, 7 Port. 466 (Ala. 1838) ; Ingalls v. Bulkley, 15 111.
224 (1853) ; Tingley v. Parshall, 11 Nebr. 443 (1881) : Blankenship v. Berry,
28 Tex. 448 (1866) ; Sanford v. Wilson, 2 Willson (Civ. Ct. of App.) § 247
(Tex. 1884), a refusal, due to an honest doubt as to identity of party making
demand held to be no conversion ; and see Kewaunee Co. v. Decker, 30 Wis.
624 (1872) ; Jacohy v. Laussatt, 6 S. & R. 300 (Pa. 1820), senible, "so if one.
who calls himself the agent of the owner, demands the goods, and the posses-



BALTIMORE & OHIO R. CO. V. o'dONNELL. 175

SECTION 6.
Effect of Offer to Return the Chattel Converted.






BALTIMORE & OHIO R. CO. v. O'DONNELL.
Supreme Court of Ohio, 1892. 49 Ohio St. 489.

Williams, J. "It is claimed that the trial court erred in its re- ^'^^^ -
fusal to instruct the jury that, if the goods described in the petition ^'^J^^^'^tt
were tendered to the plaintifif, on the 4th day of May, 1885, and the <M]or^^
same day the plaintiff saw them there, but did not take them away."/ "^y* - ^ oY
The next day, notice of the arrival of the goods was received by the r^*T -^
plaintiff, through the mail, and the night following they were stolen
from the depot where they had been placed by the defendant ; none
of them were recovered, and the perpetrators of the crime are un-
known."

After holding that the defendant who had received the goods
to be carried to the plaintiff at Shawnee, and had on January 5th,
shipped them to its agent in Baltimore, in order to prevent the plain-
tiff from getting possession of them, he being believed to have
ordered them for sale or distribution to miners, engaged in a strike
accompanied by acts of lawlessness.

"A common carrier, who, having received goods to be carried
to a designated place, transports them to another place, for the pur-
pose of preventing their coming to the possession of the consignee,
and depriving him of their use and disposition, is liable for the con-
version of the goods. After the conversion has taken place, the



sor answers that he cannot deliver them until he receives proof that he is really
the agent, no conversion can be inferred, because the answer shows nothing
like an intent to convert, but only a design to preserve the goods for the
owner," per Tilghman, C. J., p. 305; but see Sherman v. Commercial Printing
Co., 29 Mo. App. 31 (1888). where it is held that one merely permitting goods
to be stored on his premises is not even a gratuitous bailee and owes no duty
to the true owner to ascertain the title of a claimant.

A finder of goods is entitled to reasonable proof of the title of one de-
manding them, Wood v. Pierson, 45 Mich. 313 (1881), one of the defendants
found a diamond pin which he left with a jeweler to return to the owner,
who had advertised and offered a reward for its recovery, the question
whether the claimant's identification of his property was reasonably satis-
factory was held for the jury; Lord Coke in Isaack v. Clark, 2 Bulstr. 306.
"If the owner comes to him (one who finds goods) and demands them, and
he answers him, that it is not known to him whether he be the true owner of
the goods or not, and for this cause he refuseth to deliver them, the refusal
is no conversion, if he do keep them for him;" Jacoby v. Laussatt. 6 S. &
R. 300 (Pa. 1820), semblc, "If he is in possession of goods which he has found
and does not claim, and a demand being made by the owner, the possessor
answers that he is not satisfied of that person being the owner, but he is ready
to deliver the goods on reasonable proof of ownership, this is not such a de-
nial as will warrant an inference of a conversion. On the contrary it is such
an answer as a prudent man, consulting the interest of the true oiifner, has a
right to give," Tilghman, C. J., p. 305.



176 BALTIMORE & OHIO R. CO. V. O'dONNELL.

owner is under no obligation to receive the property. Brewster v.
Silliman, 38 N. Y. 423. So that, if there was a conversion of the
plaintiff's goods by the defendant, prior to the 5th of May, when
he was notified they had reached Shawnee, his right of action for
their value was complete ; and any loss of the goods occurring after
the conversion, nor refusal to accept them, could cast the loss upon
the plaintiff', because he was not then obliged to receive them. It
would have been error, therefore, in view of the evidence tending to
establish the conversion, to give the instruction requested, which
would have required the jury to find for the defendant, if the goods
were stolen without its negligence, notwithstanding they should
also find such prior conversion of them by the defendant."

Accord: Carpenter v. Manhattan Life Insurance Co., 22 Hun 47 (N. Y.
1880) ; Colby v. W. W. Kimball & Co., 99 Iowa 321 (1896), the wrongful ven-
dor of mortgaged goods recovered possession of them and tendered them to
the plaintiff; Livermore v. Northrup, 44 N. Y. 107 (1870), defendant, having
wrongfull}- levied upon the plaintiff's goods, offered to relinquish his levy:
U'hitaker v. Houghton, 86 Pa. 48 (1878), semble. Nor is the plaintiff's right
of action barred b}' an agreement made without consideration, to receive the
goods, Norman v. Rogers, 29 Ark. 365 (1874).

The same rule applies in actions of trespass de bonis asporatis, Commer-
cial Bank v. Hughes, 17 Wend. 94 (N. Y. 1837) ; Gibbs v. Chase, 10 Mass. 125
(1813) ; Kelly v. McDonald, 39 Ark. 387 (1882). Nor will the fact that the
defendant levied upon the goods after conversion for a debt lawfully due him
by the plaintiff relieve him from liability, Otis v. Jones, 21 Wend. 394 (N. Y.
1839), aliter, if the goods are sold as the goods of the plaintiff on an execu-
tion under a judgment in, favor of a third person, Higgins v. Whitney, 24
Wend. 379 (N. Y. 1840).

Such an offer, if unaccepted, does not mitigate the damages. See cases
cited ante.

In Hart v. Skinner, 16 Vt. 138 (1844), it was held following the late Eng-
lish cases, Fisher v. Prince, 3 Burrows 1363 (1862) ; Gibson, v. Humphrey, 1
Cr. & M. 544 (1833) ; (the earlier English cases were accord with the princi-
pal case, Wilcock's Case, 2 Salk. 597 (1703) ; Bowington v. Parry, 2 Stra. 822
(1728)), that where the conversion is not wilful and the property has not de-
teriorated and its value is not in dispute, the court may order the accept-
ance of the goods in mitigation of damages ; Rutland & W . R. Co. v. Bank
of Middlebury, 32 Vt. 639 (1860) ; Ward v. Moffett, 38 Mo. App. 395 (1889).

Even acceptance of the goods tendered back does not destroy the con-
verter's liahilitv, but onlv goes in mitigation of damages. Murphy v. Hobbs, 8
Colo. 17 (1884) : Bodega v. Perkerson. 60 Ga. 516 (1878) : Barreleft v. Bell-
gard. 71 111. .280 (1874) : Arnold v. Kellv, 4 W. Va. 642 (1871) ; Whitaker v.
Houghton, 86 Pa. 48 (1878) ; Harger v. McMains, 4 Watts. 418 (Pa. 1835). So
where the plaintiff has regained possession of the goods. Coburn v. Watson,
48 Nebr. 257 (1896) ; Reynolds v. Shuler, 5 Cowen 323 (N. Y. 1826) ; Murray
V. Burling. 10 Johns. 172 (N. Y. 1813) ; Pincknev v. Darling. 3 App. Div. (N.
Y.) 553 (1896), affirmed 158 N. Y. 728 (1899), plaintiff obtained his goods
by replevin; Western Land &■ Cattle Co. v. Hall. 33 Fed. 236 (1887), cattle
reclaimed by suit, or where a mortgagee has received and retained part of the
proceeds of an illegal sale of the goods covered by a chattel mortgage,
Farmer, Thompson & Helsell v. Bank of Graettinger, l30 Iowa 469 (1906).



BOOK II.



THE DEVELOPMENT OF TORT LIABILITY BY
THE ACTION OF TRESPASS ON THE CASE.



Part I .

«

Active Misconduct.



CHAPTER I.

Intentional Interference With Personal anci Property Rights.



ASHBY V. WHITE.
In the King's Bench, 1703. 2 Ld. Ray in. 938.

Gould, J.^ I am of opinion, that judgment ought to be given in
this case for the defendants, and 1 cannot by any means be recon-
ciled to give my judgment for the plaintiff for there are no foot-
steps to warrant such an opinion, but only a single case. I am of
opinion, that this action is not maintainable for these four reasons :
first, because the defendants are judges of the thing, and act herein
as judges; secondly, because it is a parliamentary matter, with which
we have nothing to do : thirdly, the plaintiff's privilege of voting is
not a matter of property or profit, so that the hindrance of it is
merely dauinuui fine injuria: fourthly, it relates to the publick. and
is a popular offence. * * * It is not any matter of profit, either in
pracscnti or in futuro. To raise an action upon the case, both dam-
age and injury must concur, as in the case of 19 Hen. 6. 44. cited
Hob. 267. If a man forge a bond in another's name, no action
upon the case lies, till the bond he put in suit against the party : so
here, it may be this refusal of the plaintiff's vote may be no injury
to him. according as the parliament shall decide the matter: f^r they
may adjudge, that he had no right to vote, whereby it will appear,
the plaintiff was mistaken in his opinion as to his right of election,
and consequently has sustained no injury by the defendant's deny-
ing to take his vote. * * *

PowYS, J.- But it is objected, that by the law of England
every one who suffers a wrong has a remedy : and here is a privilege
lost, and shall not the plaintitT have a remedy? To that I answer.



^ For the circumstances leading to and attending this action see Camp-
hell's, "Lives of the Chief Justices'", Vol. Ill, p. 45. The facts sufficiently
appear in the opinion of Lord Holt.

' Porcys, J., gives the two following reasons in addition to those given
hy Gould, J. (i) that the statute of 7 and 8 W. 3.. c. 7, is an exclusive remedy
against the officer, and to allow, in addition, every elector to have a private
action would give rise to intolerable and ruinous multiplicity of suits;
(2) that the case action is novel, pyiinae impressioiiis.

^ ^77



178 ASHBY Z'. WHITE

first, it is not an injury, properly speaking; it is not danmimi, for
the plaintiff does not lose his privilege by this refusal, for when the
matter comes before the committee of elections, the plaintiff's vote
u-ill be allowed as a good vote ; and so in an action upon the case by
one of the candidates for a false return, this tender of his vote by
the plaintiff' shall be allowed as much as if it had been given actually
and received. And if this refusal of the plaintiff's vote be an in-
jury, it is of so small and little consideration in the law, that no
action will lie for it; it is one of those things within the maxim,
de minimis non curat lex. * * *

Powell, J.'' Besides in this case, here is not a damage upon which
this action is maintainable ; for to maintain an action upon the case,
there must be either a real damage, or a possibility of a real damage,
and not merely a damage in opinion or consequence of law. * * *
If the plaintiff gives his vote for a candidate, that is as effectual
as if the officer writ it down, for it is his vote by the giving of it,
and the officer cannot himder him of it, and on a poll it will be a
good vote, and must be allowed, and so there is no wrong done to
the plaintiff; for his vote was a good vote notwithstanding what the
defendant did. Besides the plaintiff can make no profit of his vote;
and it is like the case of a qiiare impcdit, in which the plaintiff at
common law recovered no damages, because he ought not to sell
the presentation, and so could make no profit of it. So here, for it
would be criminal for the plaintiff to sell his vote. Perhaps the
putting the plaintiff to trouble and charge, to maintain and vindicate
his right of voting, might be sufficient damage to maintain an action
on the case ; but as our case is, I cannot see that the plaintiff has
received any damage.

Holt, C. J. The single question in this case is. Whether, if a
free burgess of a corporation, who has an undoubted right to give
his vote in the election of a burgess to serve in parliament, be refused
and hindered to give it by the officer, if an action on the case will
lie against such officer.

[He then expresses his agreement with the opinion of Powell,
J., that the defendant is neither a judge nor quasi a judge, but an
officer to execute the precept.]

But to proceed, I will do these two things : First, I will main-
tain that the plaintiff has a right and privilege to give his vote :
Secondly, in consequence thereof, that if he be hindered in the en-
joyment or exercise of that right, the law gives him an action against
the disturber, and that this is the proper action given by the law.

I did not at first think it would be any difficulty, to prove that
the plaintiff has a right to vote, nor necessary to maintain it, but
from what my brothers have said in their arguments I find it will
be necessary to prove it.^



"Powell, J., holds that this novelty of the action is no argument as^ainst
it and that the officer is not acting judicially but purely as a ministerto
execute the precept, but agrees that for the other reasons given no action
lies.

* The very interesting discussion of the right to vote is omitted.



ASIIBV V. W 11111; 179

The right of voting at the election of burgesses is a thing of the
highest importance, and so great a privilege, that it is a great in-
jury to deprive the plaintiff of it. These reasons have satisfied
me as to the first point.

2. If the plaintiff has a right, he must of necessity have a
means to vindicate and maintain it, and a remedy if he is injured in
the exercise or enjoyment of it ; and indeed it is a vain thing to
imagine a right without a remedy ; for want of right and want
of remedy are reciprocal.^ * * * Where a man has but one remedy
to come to his right, if he loses that he loses his right. It would
look very strange, when the commons of England are so fond of
their right of sending representatives to parliament, that it should
be in the power of the sheriff, or other officer, to deprive them of
that right, and yet that they should have no remedy ; it is a thing to
be admired at by all mankind. Supposing then that the plaintiff
had a right of voting, and so it appears on the record, and the de-
fendant has excluded him from it, no body can say, that the de-
fendant has done well; then he must have done ill, for he has
deprived the plaintiff of his right; so that the plaintiff having a
right to vote, and the defendant having hindered him of it, it is an
injury to the plaintiff. Where a new act of parliament is made
for the benefit of the subject, if a man be hindered from the enjoy-
ment of it, he shall have an action against such person who so ob-
structed him. * * * And I am of opinion, that this action
on the case is a proper action. My brother Powell indeed thinks,
that an action upon the case is not maintainable, because here
is no hurt or damage to the plaintiff; but surely every injury
imports a damage, though it does not cost the party one farthing,
and it is impossible to prove the contrary ; for a damage is not
merely pecuniary, but an injury imports a damage, when a man is
thereby hindered of his right. As in an action for slanderous
words, though a man does not lose a penny by reason of the speak-
ing them, yet he shall have an action. So if a man gives another a
cuff on the ear, though it cost him nothing, no. not so much as a
little diachylon, yet he shall have his action, for it is a personal in-
jury. So a man shall have an action against another for riding over
his ground, though it do him no damage; for it is an invasion of
his property, and the other has no right to come there. And in these



° So per Willcs. C. J., Wmsmorc v. Grccnhank, Willcs 577 (1745), p. 581
(an action for enticing away plaintiff's wife). "A special action on the case
was introduced for the reason that the law will never suffer an injury and a
damage without a remedy." While the husband's right to his wife's con-
sortium was recognized in this case as worthy of legal protection, no correla-
tive right has been as yet recognized in England as belonging to the wife.
Lynch V. Knight, 9 H. L. C. 577 (1861) ; Lcllis v. Lambert, 24 Ont. Ap. 653
1897), see Osier, J., p. 661, and it is only within recent years that such a ri^ht
in the wife has been recognized in the United States — U'estlakc v. Wcstlakc.
34 Ohio St. 62t (1878) ; Scavcr v. Adams. 66 N. H. 142 (1889) ; Bennett v.
Bennett. it6 N. Y. 584 (1889) : Cernerd v. Cenicrd. 185 Pa. 233 (t8o8\ and
cases (decided between 1890 and 1900) cited in Burdick, Law of Torts, 277
n. 16. contra Houghton v. Rice. 174 Mass. 366 (1899); Duffies v. Duffies, 76
Wis. 374 (1890), and Doe v. Roe. 82 IMe. 503 (1890).



j3q ashby v. white

cases the action is brought v'x et armis. But for invasion of another's
franchise, trespass vi ct armis does not he, but an action of trespass
on the case; as where a man has rctorna brcvium, he shall have an
action against any one who enters and invades his franchise, though
he lose nothing by it. So here in the principal case, the plaintiff is
obstructed of his right, and shall therefore have his action. And it
is no objection to say, that it wiU occasion multiplicity of actions;
for if men will multiply injuries, actions must be muhiplied too; for
every man that is injured ought to have his recompense. Suppose
the defendant had beat forty or fifty men, the damage done to each
one is peculiar to himself, and he shall have his action. * * * But
it would be otherwise if a man dig a pit in a highway, every pas-
senger shall not bring his action, but the party shall be pun-
ished by indictment; because the injury is general and common to
all that pass. But when the injury is particular and peculiar to
every man, each man shall have his action.^

'But in the principal case my brother says, we cannot judge of
this matter, because it is a parliamentary thing. O ! by all means