measure of a mortgagee's recovery against the mortgagor, for conversion of the goods mortgaged, after forfeiture.

A bond fide subpurchaser of goods, is not liable in trover, to an owner who has delivered them to the original vendee, though such delivery has been induced by fraud, which would authorize a disaffirmance of the contract. Caldwell vs. Bartlett, 3 Duer, 341; Keyser vs. Harbeck, 3 Duer, 373. But any thing calculated to give such subpurchaser notice, or to put him upon inquiry as to fraud in the original sale, will deprive him of the benefit of this rule. Danforth vs. Dart, 4 Duer, 101.

The holder of goods subject to a lien, is not liable for conversion, until after demand and payment, or tender of the amount due, if any. Coller vs. Shepard, 19 Barb., 305. Refusal to deliver, however, upon tender made, discharges the lien, and constitutes a conversion. La Motte vs. Archer, 4 E. D. Smith, 46; Meserole vs. Archer, 3 Bosw. 376. Where, however, the holder claims a lien, his claim must be specifically asserted at the time of demand, or his refusal to deliver may be sufficient proof of conversion. Heine vs. Anderson, 2 Duer, 318.

An agent to whom goods had been sent for delivery to the vendee, was held not liable in trover, for a refusal to deliver them without payment in cash, though a bill had been drawn against them by the vendee, and accepted by the plaintiff. Ralph vs. Stuart, 4 E. D. Smith, 627. If the value of goods, in the possession of a bailee for manufacturing purposes, be enhanced by his labor, he or his assignee, though liable in trover for their return, will be entitled to a deduction in respect of their increased value. Hyde vs. Cookson, 21 Barb., 92. But, where property has been wrongfully converted, the reverse is the rule, and the owner is entitled to recover the enhanced value, even though owing to the labor and expense of the party illegally withholding. Walther vs. Wetmore, 1 E. D. Smith, 7.

An unconditional offer to return property claimed, before suit brought, may defeat a recovery in replevin, but, where demand has been pre'viously refused, trover may lie for damage occasioned by such original refusal. Savage vs. Perkins, 11 How., 17.

Trover will not lie against a party not guilty of an actual conversion, and who has never had possession of the property, but merely claims a lien upon it as mortgagee. Matteawan Company vs. Bentley, 13 Barb., 641. Nor is a pledgee, who has returned property to the pledgor, before the acquisition of title by the plaintiff as assignee, liable to him. Duell vs. Cudlipp, 1 Hilt., 166.

Where the possession of the defendant has not been wrongfully acquired, as against the plaintiff in the action, a previous demand and refusal to deliver is essential to its maintenance. So held as to a party

7

detaining property from a vendee, subsequent to his having taken possession. Davis vs. Kruger, 4 E. D. Smith, 350. As to an abstract loaned. Power vs. Bassford, 19 How., 309. So also as to a personally innocent holder of stolen goods. Gurney vs. Kenny, 2 E. D. Smith, 132. Where, after goods have come to the possession of the defendant, an assignment of them has been made, there must be a demand, subsequent to that assignment. Hassell vs. Borden, 1 Hilt., 128; Duell vs. Cudlipp, supra; Sherman vs. Elder, 1 Hilt., 178; Cass vs. New York and New Haven Railroad Company, 1 E. D. Smith, 522; Hall vs. Robinson, 2 Comst., 293; Bliss vs. Cottle, 32 Barb., 322. After a reversal of judgment, demand must be made upon an officer in possession of property levied upon under it, before he will be liable for a refusal to restore it. Smith vs. Allen, 2 E. D. Smith, 259.

So also, a demand is proper before suit against the holder of goods wrongfully pledged. Henry vs. Marvin, 3 E. D. Smith, 71. Or against the holder of goods, purchased by the plaintiff from their owner. McGinn vs. Worden, 3 E. D. Smith, 155.

But a demand of this nature must be specific, and the party upon whom it is made is entitled to all proper information which he may reasonably require, or it will be insufficient. Breese vs. Bangs, 2 E. D. Smith, 474. If the party upon whom it is made, have any doubt of the demandant's authority, he must inquire of it at the time, and may require reasonable evidence. But if he omit to do so, or rest his refusal upon a false pretence, he cannot afterwards object. Tuttle vs. Glad ding, 2 E. D. Smith, 157. But the demand should be made by the claimant in person, or some one duly authorized to make it. Bliss vs. Cottle, 32 Barb., 322.

Demand will be sufficient, if made of one of several joint holders. Ball vs. Larkin, 3 E. D. Smith, 555. Or against an agent fully authorized, as the baggage master at a railroad station, in an action for loss of baggage. Cass vs. The New York and New Haven Railroad Company, 1 E. D. Smith, 522.

But, when demand is made, ability to comply with it at the time, must be shown, or an action in this form will not be maintainable. Whitney vs. Slauson, 28 Barb., 276; Bowman vs. Eaton, 24 Barb., 528; Andrews vs. Shattuck, 32 Barb., 396.

As to how far the acts of an officer of a corporation, may or may not amount to a conversion by the corporation itself, and also as to the effect of a qualified refusal to deliver on demand, and as to that of a subsequent offer before suit brought, see Thomson vs. Sixpenny Savings Bank of City of New York, 5 Bosw., 296.

Where the taking by the defendant into his possession is wrongful, the rule will be reversed, and an action is maintainable without any previ

ous demand. Moses vs. Walker, 2 Hilt., 536; Pringle vs. Phillips, 5 Sandf., 157; Zachrisson vs. Ahman, 2 Sandf., 68; McKie vs. Judd, 2 Kern., 622 (626); Davison vs. Donadi, 2 E. D. Smith, 121; New York Car Oil Company vs. Richmond, 6 Bosw., 213.

Nor, where the possession of the defendants is of this nature, will any previous tender of any lien which they might otherwise claim, be requisite. Walther vs. Wetmore, 1 E. D. Smith, 7.

In a complaint of this nature, an actual fraudulent conversion by the plaintiff must be both alleged and proved. Howell vs. Kroose, 4 E. D. Smith, 357; 2 Abb., 167; Hall vs. Robinson, 2 Comst., 293. And proof of a demand and refusal are only primâ facie evidence, and will not suffice, without further proof of actual fraud and negativing any adverse implication. Boyle vs. Roche, 2 E. D. Smith, 335.

Where the title of the plaintiff to the subject-matter of the action is dependent upon the construction of a written document, that document should be set forth, or its purport sufficiently alleged. And if an objection to the plaintiff's recovery appears upon the face of the complaint, it will, of course, be held defective. Fairbanks vs. Bloomfield, 2 Duer, 349.

But, under ordinary circumstances, a general allegation of ownership, without stating details, will be both sufficient and proper, and a bill of sale under which such ownership is derived, may be given in evidence without special allegation. Heine vs. Anderson, 3 Duer, 318. An issue joined on this allegation, admits any description of counter-evidence on the part of the defendant. Davis vs. Hoppock, 6 Duer, 254.

In an action for the wrongful taking of goods, ownership in the plaintiff need not be alleged, and even an allegation from which possession may be implied, will suffice. Kissam vs. Roberts, 6 Bosw., 154.

And in an action on the ground of fraud, a general claim of ownership will be sufficient, without any detailed allegation of the facts con· stituting the plaintiff's title. Bliss vs. Cottle, 32 Barb., 322.

Any lengthened statement of details as to the nature of the ownership of the plaintiff, or the mode of conversion by the defendant, will, with the exception above noticed, be not only wholly unnecessary, but may be stricken out as irrelevant and redundant. Moffatt vs. Pratt, 12 How., 48.

A mere breach of duty, as that of an agent intrusted with property, and selling it at an undervalue, contrary to instructions, will not be sufficient to constitute a conversion, and a variance of this nature between the allegation and the proof, will be fatal. Moore vs. McKib bin, 33 Barb., 246.

§ 144. Averments in Tort.—Continued.

Breach of Duty or Contract.

(a.) COMMON CARRIERS.

In a suit against a person or a corporation, standing in this relation to the public, the liability to be enforced is of a mixed nature, arising mainly in respect of breach of duty, and also, to some extent, in respect of breach of the implied contract for safe carriage and delivery. The former is however the dominant principle, and, as a general rule, an action of this description sounds in tort.

It may be maintained, in fact, when there exists no direct contract between the parties, as in the case of a party injured by a railroad accident, when the contract for his carriage was made, not with himself but with his employer. Nolton vs. The Western Railroad Corporation, 15 N. Y., 444; affirming same case, 10 How., 97. See also as to the liability of railroad companies, for injury to a passenger actually carried by them, though the contract under which he was carried was invalid as a contract, being ultra vires. Bissell vs. Michigan Southern and Northern Indiana Railroad Companies, 22 N. Y., 258.

An action of this description, in respect of a miscarriage of property, is maintainable by an assignee of the original demand. See heretofore, section 32, under the subordinate head of Assignments in Tort. The rule is otherwise as to a personal injury. See this subject heretofore considered.

The old common-law doctrine, that a common carrier of goods stands in the light of a quasi-insurer, and is responsible for all accidents, save such as arise from the act of God, or of the public enemy, still governs, though its strictness in application has been somewhat relaxed. See generally as to this responsibility, and the averments necessary to eustain a claim, Merritt vs. Earle, 31 Barb., 38.

But, although inevitable accident may excuse the carrier, the principle does not apply in a case where he is anywise in fault himself. Unreasonable delay on his part, will render him liable for a loss, occurring under circumstances which, but for his laches, would have afforded a sufficient excuse. Read vs. Spaulding, 5 Bosw., 395.

As regards a carrier of passengers, the rule is less severe, and to hold him answerable for a personal injury, negligence must be shown or inust be imputable, and negligence contributing to the injury must be disproved. See above, under the subdivision of Personal Injuries.

A carrier of goods is permitted to limit his liability by special contract; he cannot, however, do so by mere notice, even if brought to the knowledge of the owner. Dorr vs. The New Jersey Steam NaviVOL. I.-46

gation Company, 1 Kern., 485; Mercantile Mutual Insurance Company vs. Chase, 1 E. D. Smith, 115; Nevins vs. Bay State Steamboat Company, 4 Bosw., 225; Newstadt vs. Adams, 5 Duer, 43; Parsons vs. Monteath, 13 Barb., 353; Moore vs. Evans, 14 Barb., 524. So also as to a carrier of passengers. Wells vs. The New York Central Rail road Company, 26 Barb., 641; Smith vs. The Same, 29 Barb., 132; Boswell vs. Hudson River Railroad Company, 10 Abb., 442.

But such a limitation will not excuse gross negligence, for which, notwithstanding, he may still remain liable. See, as to a carrier of passengers, Willes vs. The New York Central Railroad Company, and Smith vs. The Same, supra; Bissell vs. The Same, 29 Barb., 602. As to injury to property, Wells vs. The Steam Navigation Company, 4 Seld., 375.

A common carrier may, by stipulation, secure to himself the benefit of any insurance effected by the owner, and, in such case, the insurers have no right of action against him, in case of abandonment. Mercantile Mutual Insurance Company vs. Calebs, 20 N. Y., 173.

A party standing in this relation, is liable for contracts made by his servants, or agents authorized by him to receive goods for carriage, or allowed by him to hold themselves out to the public, as possessing such authority. Medbury vs. The New York and Erie Railroad Company, 26 Barb., 564; Schroeder vs. The Hudson River Railroad Company, 5 Duer, 55; Fenn vs. Timpson, 4 E. D. Smith, 276. Also, for the wrongful acts of his agents or servants, Weed vs. The Panama Railroad Com pany, 5 Duer, 193; Nolton vs. Western Railroad Corporation, supra. And likewise, in respect of their neglect of duty, see Freeman vs. Newton, 3 E. D. Smith, 246; Porter vs. New York Central Railroad Company, 34 Barb., 353; Morris vs. Third Avenue Railroad Company, 23 How., 345.

If a carrier undertakes to carry goods to a point beyond his route, he is liable for their safe delivery, at the place to which they are so undertaken to be carried, and for any injury occurring to them in the course of their carriage to that place. And, where the carriage for the whole distance is performed by several companies, employing a common agent to make contracts for carriage, an action is maintainable against any one of them. Hart vs. The Rensselaer and Saratoga Railroad Company, 4 Seld., 37; Fox vs. The Troy and Boston Railroad Company, 24 Barb., 382; Schroeder vs. The Hudson River Railroad Company, 5 Duer, 55 ; Mallory vs. Burrett, 1 E. D. Smith, 234; Thomas vs. Mills, 4 E. D. Smith, 75; McCormick vs. The Hudson River Railroad Company, 4 E. D. Smith, 181; Quimby vs. Vanderbilt, 17 N. Y., 306; Wing vs. The New York and Erie Railroad Company, 1 Hilt., 235; Krender vs. Woolcott, 1 Hilt., 223. Nor will a direction to deliver a parcel at a particular place, to an agent of the carriers', for further transmission,