Statement of case.

the baggage was a sufficient qualification of the refusal to deliver, to rebut the evidence of conversion furnished by such demand and refusal, was a question of fact for the jury. By CHURCH, Ch. J., and RAPALLO, J., that as matter of law there was no conversion. By GROVER and PECKHAM, JJ., that as matter of law there was a conversion. In an action of trover interest is as necessary a part of a complete indemnity as the value itself, and in fixing the damages is no more in the discretion of the court.

Copies of original memoranda after proof of the facts therein contained may be read as a statement in detail of what the witness has testified. In the absence of statutes varying the rule, jewelry and ornaments presented to a wife are her paraphernalia, and as such are subject to the control of her husband, and he alone can sue for an injury to or conversion of them.

Plaintiff and his wife were married in Illinois in 1858. By a statute of that State, passed February 21st, 1862, it was enacted that the property of any married woman belonging to her as her sole and separate property shall remain such, and that the property she acquires during coverture in good faith from any person, other than her husband, shall be and remain her sole and separate property. Prior to the passage of this act, plaintiff had purchased and presented to his wife various articles of wearing apparel, jewelry and ornaments. Held, that plaintiff was entitled to sue for an injury to or conversion thereof.

(Argued April 12, 1872; decided April 30, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon a verdict, and affirming an order denying a motion for a new trial.

The action was brought to recover the value of certain clothing, jewelry, etc., constituting the baggage of plaintiff, accompanying him while traveling with his wife, alleged by him to have been converted by defendant.

On the 11th of March, 1862, plaintiff, in company with his wife, presented the baggage in question at the passenger depot of defendant in Philadelphia, and desired to have the same checked from thence to Chicago. By a rule or regulation of the defendant, no passenger could rightfully demand that his baggage should be checked. for transportation on their road until he should first pro cure and exhibit to the baggage-master passage tickets for

Statement of case.

the distance he was entitled to be carried. The baggagemaster demanded passage tickets as a condition to checking such baggage. Plaintiff left for the purpose of procuring them. In his absence the baggage-master caused said baggage to be placed in the baggage car of the defendants, and, on the plaintiff's return with his tickets for Chicago, refused to give checks for the baggage without extra compensation on account of its excess of weight, which the plaintiff refused to pay, and demanded his baggage or the checks therefor. The baggagemaster refused to deliver either. The reason for the refusal to deliver the baggage was that it was covered by other baggage, and could not be reached and removed before the time for starting the train. Plaintiff declined to go upon that train. The baggage was carried safely to Chicago, and, no one being there to receive it, was stored in the usual place for unclaimed baggage, and upon the night succeeding its arrival was destroyed by fire.

Upon the trial certain memoranda or lists of the articles in the trunks were read. The facts in regard thereto are set forth in the opinion.

Plaintiff received an order upon the baggage-master at Pittsburgh to deliver the baggage without checks. A telegram had been sent to stop the baggage there. This order plain tiff delivered, upon his arrival at Pittsburgh, to a Mr. Richardson, an agent of defendant, and was informed that the telegram was received, but that in the hurry the baggage had not been stopped. This was objected to upon the ground that it was not in connection with any act as agent.

Other facts and questions presented appear in the opinion. The court directed the jury to find a verdict for plaintiff, submitting to them simply the question of damages. The jury rendered a verdict for plaintiff for $10,660.61.

Charles M. Da Costa and Ira Shafer for the appellant. Residence when once established is presumed to continue until a change is proven. (2 Kent's Commentaries, 431 marginal, and cases cited in the notes; Crawford v. Wilson, 4 SICKELS-VOL. IV.

39

Statement of case.

The ques

Barb., 504; Jennison v. Hapgood, 10 Pick., 77.) tion of jurisdiction was not waived by defendant appearing and answering. (Cumberland Coal Co. v. Sherman, 8 Abbott's Pr. R., 243; Harriott v. N. J. R. R. and Transportation Co., 2 Hilt., 262; Jones v. Norwich and N. Y. Trans. Co., 50 Barb., 193.) The defendant being a common carrier, an appropriation of the goods to its own use must be shown to sustain action. (Whitney v. Wilson, 30 Barb., 276; Tolano v. National Steam Nav. Co., 5 Robertson, 318; Devereaux v. Barclay, 2 Barn. & Ald., 702; Stevenson v. Hart, 4 Bing., 476; Nelson v. Whitmore, 1 Richardson [S. C.], 323.) The demand and refusal were not conclusive proof of conversion, but only evidence tending to show the conversion. (Rook v. Midland R. R. Co., 14 Eng. Law and Eq., 178; Wild v. Walters, 32 id., 422; Kelsey v. Griswold, 6 Barb., 443; Andrews v. Shattuck, 32 id., 397; Dunlap v. Hunting, 2 Den., 643; Johnson v. Couillard, 4 Allen, 446; Robinson v. Burleigh, 5 N. H., 225, 228; Ludley v. Downing, 2 Carter [Ind.], 419; Nelson v. Whitmore, supra.) Where a qualification is attached to a refusal, the question is whether such qualification be a reasonable one or not. (Ganton v. Nurse, 2 Brod. & Bing., 447; Fouldes v. Willoughby, 8 Mes. & W., 540; Hayward v. Seaward, 1 Moore & Scott, 459; Wilde v. Waters, 32 Eng. Law and Eq., 422; Dekrt v. T Childs, 5 Stew. & Port. [Ala.], 383; St. John v. O'Connell, 7 Port., 466; Mount v. Derrick, 5 Hill, 456; Thompson v. Sixpenny Savings Bank, 5 Bosw., 311; McEntee v. N. J. Steamboat Co., 45 N. Y., 34.) Whether the refusal under the circumstances constituted conversion or not, was a question of fact for the jury. (Lockwood v. Bull, 1 Cow., 330, 333; Jessup v. Miller, 1 Keyes, 329; Thompson v. Sixpenny Savings Bank, 5 Bosw., 311, and cases there referred to; Watt v. Potter, 2 Mason, 80.) Conversion is waived by any subsequent acts inconsistent with it or ratifying the wrongful act. (Wells v. Kelsey, 15 Abb., 53; Ball v. Liney, 44 Barb., 504, 514, 515; Brewer v. Gregory, 2 Barn. & Cress., 310; Lythgoe v. Vernon, 5 Hurl. & N., 179; Rotch v. Howes, 12

Statement of case.

Pick., 139; Hewes v. Parkman, 20 Pick., 90; Firemen's Ins. Co. v. Cochran, 27 Ala., 228; Bell v. Cummings, 3 Sneed. [Tenn.], 286.) Whether the facts constitute a waiver, is a question for the jury. (Lucas v. Trumbull, 15 Gray, 309.) Defendant had a right to make reasonable rules in reference to transportation. (Hibbard v. N. Y. and Erie Railway Co., 15 N. Y., 455; Commonwealth v. Powers, 7 Metc., 596.) If the conduct of defendant's agent was not justified by the rules, defendant is not liable. (Hibbard v. N. Y. and Erie R. R. Co., 15 N. Y., 455, 461-467-469.) A common carrier is not responsible beyond the limits of his own line, except by special contract. (Van Santvoord v. St. Johns, 6 Hill, 157; McDonald v. Western R. R. Co., 34 N. Y., 497; Root v. Great Western R. R. Co., 45 N. Y., 524, 529, 530; Maghee v. Camden and Amboy R. R. Co., 45 N. Y., 514, 518; Northern R. R. Co. v. Fitchburg R. R. Co., 6 Allen, 254; Notting v. Conn. R. R. Co., 1 Gray, 502; Pendergrast v. Adams Express Co., 101 Mass., 120; Elmore v. Naugatuck R. R. Co., 23 Conn., 473; Naugatuck R. R. Co. v. Waterbury Button Co., 24 id., 468; Jenneson v. Camden and Amboy R. R. and Trans. Co., 4 Law Reg., 234; Rome R. R. Co. v. Sullivan, 25 Ga., 228; Withers v. Macon and Western R. R. Co., 35 id., 273; Fowles v. Great Western R. R. Co., 16 Eng. Law and Eq., 531.) The contract must be governed by the law of Pennsylvania. (Schwartzenburger v. Penn. R. R. Co., 45 Penn., 208.) On the arrival of the trunks at Chicago, defendant became mere warehousemen, and were not liable for the destruction of the trunks by fire. (Fisk v. Newton, 1 Den., 45; Rowland v. Milne, 2 Hilt., 150; Goold v. Chapin, 20 N. Y., 259; Roth v. Buffalo and State Line R. R. Co., 34 N. Y., 548; Thomas v. Boston and Providence R. R. Co., 10 Met., 472; Norway Plains Co. v. Boston and Maine R. R. Co., 1 Gray, 263; Cincinnati and Chicago R. R. Co. v. McCool, 26 Ind., 140.) The allowance of interest was a matter of discretion with the jury. (Black v. C. and A. R. R. Co., 45 Barb., 40; Walrath v. Redfield, 18 N. Y., 547; Matthews v. Menadger, 2 McLean, 145; Lincoln v. Claflin, 7

Opinion of the Court, per FOLGER, J.

Wal., 132.) What is reasonable baggage, is a question of fact for the jury. (Rawson v. Penn. R. R. Co., 2 Abb. [N. S.], 220; Merrill v. Grinnell, 30 N. Y., 594.) The declarations of Richardson were no part of the res gesta, and were inadmissible. (Greenleaf on Evi., § 113; Story on Agency, § 134; Penn. R. R. Co. v. Buck, 57 Penn., 339; Pratt v. Ogdensburgh and Lake Champlain R. R. Co., 102 Mass., 557.) The wife alone could sue for her separate property. (Rawson v. Penn. R. R. Co., 2 Abb. [N. S.], 221.) The exceptive words "from any person other than her husband" apply only in cases where the rights of creditors were involved. (Lockwood v. Cullen, 4 Robertson, 133; Wilbur v. Friedenburg, 52 Barb., 478; Jaycox v. Caldwell, 37 How. Pr. R., 247; Kelly v. Campbell, 38 N. Y., 29.) The rule is the same under the laws of Illinois. (Manny v. Recksford, 44 Ill., 129; Sweeny v. Danrom, 47 id., 450, 455.)

E. M. Stoughton and Samuel Hand for the respondent.

FOLGER, J. 1st. Had the court below jurisdiction of the action and of the parties, so that it could render the judgment appealed from?

We will assume that the plaintiff was at no time a resident of this State, and that the learned justice at circuit erred in ruling, that as a fact established he was a resident. We do not however determine those questions, as we can otherwise dispose of the defendant's objection of want of jurisdiction.

The cause of action was of that nature, that although it arose in another State, the court below had jurisdiction of the subject-matter of the action. In this respect the case differs from Harriott v. New Jer. Trans. & R. R. Co., 2 Hilton, 262, cited to us by the defendant. There the Court of Common Pleas of the city and county of New York had no jurisdiction of the subject-matter, being confined by the Code, § 33, in such case, to a cause of action arising in this State.

The defendant in the case at bar employed attorneys who, as officers of the court, served notice of the defendant's appear