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Opinion of the Court, per FOLGER, J.

sending forward the baggage (Hewes v. Parkman, 20 Pick., 90); or an affirmation of the act, and a treating the defendant as the agent of the plaintiff in doing it, (Brewer v. Sparrow, 7 B. & C., 310); or as a satisfaction for the wrongful act (id; Lythgoe v. Vernon, 5 H. & N., 179); or as testimony tending to rebut the evidence of conversion furnished by the demand and refusal, and so going to show that there was no conversion by the defendant to its own use of the property of the plaintiff.

As the authorities are in this State, the last is the better view of it. See Ilanmer v. Wilsey (17 Wend., 91); Otis v. Jones, 21 id., 394), which hold that a mere tender will not bar a tort, nor take away a right to a full compensation in damages; and Reynolds v. Shuler (5 Cow., 323), where it is laid down that trover lies for the conversion of a chattel, though it be restored before suit brought, the restoration going only in mitigation of damages.

The testimony should have been submitted to the jury on the issue of a conversion. And see Carver v. Nichols (10 Gray, 369); 7 Allen, supra.

And the learned justice erred at the circuit in taking these questions from the jury, and passing upon them as matters of law for his determination. It follows that there must be a new trial.

There are some questions made in the case which it may be well to pass upon now, to facilitate another trial if one should be had.

1st. We think that the defendant is liable for the act of the baggage-man at its depot at Philadelphia, though that act should be held wrongful. He was acting within the scope of his authority in requiring checks for the baggage, and in demanding payment of the charge for extra baggage, and in putting it into the car before payment thereof, and in refusing delivery of it for the reason given by him. This makes the defendant responsible for his act. (Higgins v. The Watervliet Turnpike and R. R. Co., 46 N. Y., 23.)

2d. We do not think that the defendant can avail itself in

Opinion of the Court, per FOLGER, J.

this action of any of the rules which it invoked which have been laid down as to the liability of common carriers. As before remarked, the cause of action if any does not arise from any fixed relation of the plaintiff to the defendant, as a passenger with his baggage carried or to be carried by it. He expressly arrested the commencement of that relation and refused to enter into it, and for the express purpose of preventing it, demanded back his baggage. From that moment the defendant, if this action is maintainable at all, did not hold his trunks as common carriers of him and them, but as wrong-doers, tortiously detaining them and converting them to its own use.

3d. The plaintiff if he maintains his case, this being an action of trover, will be entitled to interest from the time of the conversion. (Hyde v. Stone, 7 Wend., 354.) In the action of trover, interest is as necessary a part of a complete indemnity as the value itself, and in fixing the damages, is not any more in the discretion of the jury than the value. (Andrews v. Durant, 18 N. Y., 496.)

4th. The memoranda received in evidence were not original entries; they were copies of originals. A copy of an entry made by himself or by any other person, may be used by a witness to refresh recollection (Marcly v. Shultz, 29 N. Y,, 346), and the original memorandum may be read in evidence, if made at or near the time when a material fact to which it relates occurred, and the witness producing it can swear that it was made correctly, though he cannot then recollect the facts contained in it. (Halsey v. Sinsabaugh, 15 N. Y., 485.) But a copy of a memorandum cannot be read as evidence of the contents of it. (29 N. Y., supra.) Though the testimony as given in the appeal book, is confused as to the various memoranda produced on the trial, it is evident that the memoranda first made by the plaintiff and those helping him were destroyed, and that the papers exhibited to the witnesses were prepared from them ; but it does not appear that they were literally copies. It seems that in preparing the lists of articles in the different lost trunks, the memories of

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Opinion of the Court, per FOLGER, J.

those engaged, principally that of the wife of the plaintiff, were set at work, and as articles were brought to recollection from the bills of the purchase of them and otherwise, they were set down upon paper; different pieces of paper it would appear. When this process was completed, the contents of those papers were transcribed in gross. These were the completed and corrected memoranda, and substantially the original memoranda. It was as to these that the plaintiff's wife testified, that she knew all the articles named in them were in the trunks. We do not understand that the memoranda were read to the jury as evidence of themselves of what were the contents of the lost trunks, but only as a statement on paper in detail, of what this witness had testified were the articles contained in the trunks. In this view the memoranda were competent.

5th. The testimony as to the declarations of Richardson or other person, an agent of the defendant at Pittsburgh, was objected to as not accompanying any act of his as such agent. But this is a mistake of fact.

The plaintiff presented to him an order for the trunks, which was addressed to Richardson, and it was in answer to this order and excusing himself from compliance with it that he made the statement testified to. It was in the performance of his duty as agent and as part of the res gesta. It was not error to admit the statement.

6th. The objection to the testimony upon the value of the brooch given by the wife of the plaintiff, and the testimony, as to value given by Miss Merrick, that they were not shown to be qualified to speak as to value, was well taken. The foundation had not been laid by any proof of the knowledge of the witnesses upon the subject. The value of the articles was sufficiently shown by other testimony, so that the defendant was not perhaps, injured by this testimony, and we should not feel called upon to regard the admission of it as fatal, were it the only point taken.

7th. A question of some importance, is that raised by the objection to proof as to the necklace and other personal orna

Opinion of the Court, per FOLGER, J.

ments of the plaintiff's wife; and by the request to charge that the plaintiff could not recover in this action for them, or for her wearing apparel.

It appeared that the plaintiff and his wife were married in 1858, in Illinois, and that the diamonds, jewelry and ornaments were presents made there by the husband to the wife, and that the wearing apparel was bought for her after marriage, for her especial use, by the husband or with his money. It is claimed that all these are her own property, which the plaintiff cannot control; and that for a conversion of it, he cannot maintain an action. This action was commenced in 1867, but the alleged conversion was in March, 1862.

In the absence of statutes, varying the law, chattels of this kind, got for the use of the wife, would be deemed her paraphernalia. (2 Blk. Com., 435.)

As such they were subject to the control of the husband during his lifetime, and he alone could sue for an injury to, or a conversion of them. The defendant claims that this character of them has been changed by statute. It relies upon the statute of Illinois, passed 21st February, 1861, and which was given in evidence on the trial. That act was passed after the marriage of the plaintiff, and so far as appears, after the purchase of all the chattels in question. It enacts that the property of any married woman, belonging to her as her sole and separate property, shall remain such. But these chattels were not then the sole and separate property of Mrs. McCormick. The statute further enacts that the property which any married woman acquires during coverture, in good faith from any person other than her husband, shall be and remain her sole and separate property. But this property was not thus acquired by her after her marriage. As this property was all bought and put into the possession of the wife before she was a resident of this State and while she was a resident of Illinois, we must rest upon the law of that State, as it is shown to us to be, by the production in evidence of the statute above referred to. In this view, Rawson v. Penn. R. R. Co., lately decided by the Commission of Appeals and

Statement of case.

cited to us by the appellant, is not in point; as that rests entirely upon the statute law of this State. We see no reason why the plaintiff is not entitled to sue for an injury to or a conversion of this property claimed by the defendant to belong to his wife as her sole and separate property.

But for the error in not submitting to the jury the question of whether there was a conversion of the property by the defendant, as affected by the reasonableness of the excuse made for not delivering it on the plaintiff's demand, the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event of the action.

All concur upon questions discussed, save on question of conversion.

ALLEN, J., concurs with opinion.

CHURCH, Ch. J., and RAPALLO, J., are of opinion that, as matter of law, there was no conversion.

GROVER and PECKHAM, JJ., are of opinion that, as matter of law, there was a conversion and they dissent from result.

For reversal, CHURCH, Ch.J., FOLGER, ALIEN and RAPALLO, JJ.

For affirmance, GROVER and PECKHAM, JJ.
Judgment reversed.

Join KELLY, late Sheriff, etc., Respondent, v. Francis M.'

BABCOCK et al., Appellants.

An agreement in a bill of sale or instrument of transfer of personal pro

perty, that a portion of the purchase-money of the goods sold may be paid to and among the creditors of the vendor, withont a covenant or agreement upon the part of the vendees thus to pay, creates no trust ; the balance unpaid is a debt due the vendor, and can be reached by and held under an attachment against his property.

(Argued April 24, 1872 ; decided April 30, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment entered upon the report of a referee in favor of plaintiff.

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