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Opinion of the Court, per PECKHAM, J.

ground was taken to the indictment. (Regina v. Rudick, 8 Car. & P., 237.)

I am satisfied that it was not necessary, to constitute robbery at common law, that the property taken should belong to the person robbed.

Unless our statute has made a change in this respect, withont seemingly intending it, this conviction was clearly right.

The language, “ taking the personal property of another” (that is, of some one other than the prisoner) “from his person, or in his presence," taken literally, declares that the person robbed must own the property taken ; that it must be his. But this does not mean that it should be absolutely his. It means that the property taken must be from the person, or in the presence of the person, robbed. That is the only point of this provision; not that it shall necessarily belong to that person. Most sound rules for the interpretation of statutes would give these words this meaning.

There was no evil which such a change would remedy. Hence none could have been aimed at. The only evil result, as all must admit, would be produced by the change claimed in the statute by the prisoner's counsel.

If all property found in the actual custody of the person robbed be not held to be his property, under this act, then, whenever the master of the house be absent, the house may be robbed with impunity, so far as robbery is concerned; it is larceny, but no robbery. So if a servant be entrusted with money to deposit in a bank, and is robbed on his way, it is larceny merely, but no robbery. In my opinion, though such a construction is within the letter it is not within the spirit or purpose of the act; and, so, not within the act. A purpose to change the common law should not be imputed, unless that purpose be plainly evinced. It is the policy of our law to enact general statutes as far as may be. England has several more statutes on this subject. (See 2 Russ on Cr., 4th ed.) Such a construction as is claimed for the prisoner would, as we have seen, require another statute.

If wrong in this construction, then the question arises, was

Opinion of the Court, per PECKHAM, J.

case.

this girl the owner of the property taken? This point is largely discussed in the books.

On the one side it is held she is not the owner, upon the ground that she is the mere servant of the owner, her father; that her possession is his; and that, therefore, she has no possession and no special property in the things taken. (2 East Pl. Cr., 652, 653, and cases there cited; R. v. Green, 37 Eng. L. and Eq. R., 598.) The last is very nearly this

On the other side it is held, that a person having the actual, as against the constructive, possession of the owner, having the charge of the property, may be regarded and stated as the owner as against all wrong-doers.

Such is the principle of the case of R. v. Taylor (1 Leach, 395), where a coach glass of a gentleman's coach, standing in a coach master's yard, was stolen ; and it was charged and held to be the property of the coach master. So where property was stolen from a coach box on its journey, held, it might be laid as the property of the driver. For though,

as between him and the proprietors of the coach, on this prosecution, the law considers the driver to have the bare charge of the goods belonging to the coach; but, on a charge against any other person for taking them tortiously from driver's custody, he must he considered as the possessor." (Rex v. Drakin, 2 Russ on Cr., 94, in margin.) So property in clothes of child may be laid as in father or child. (2 id., 84, 95, marg. p.) So of goods stolen at an inn, the property may be laid in the landlord or in the owner. There are many other cases where it may be charged in either of several parties.

In a case in this court one judge held, in substance, that property might be laid as in the actual possessor; and another judge held the opposite, and the point was not decided. (People v. Bennett, 37 N. Y., 117; see State v. Addington, 1 Bailey, 310; Owen v. State, 6 Hump., 330, in point.)

The only objection stated in the books to a wrong owner being named is that the prisoner might be indicted again on a charge of larceny from the true owner. If our statute be

Opinion of the Court, per PECKHAM, J.

construed as claimed by prisoner's counsel, such an objection could have no force. Because, if the property did not belong to the person robbed, then there is no robbery. It must be charged as his, or there could be no indictment for this offence.

I see no objection to holding the law to be as declared in the coach driver's case, that the girl is the owner as against all tort-feasors; but as between her and her father or master, he had the possession and title. Clearly, if the legislature intended, by this act, to say that the person robbed should be the owner of the goods taken, then they could have intended no more than that he should be the owner as against the robber; that he should have the actual custody or charge of the property taken; the actual possession as against the wrong-doer; but the mere charge as against the real owner in any prosecution by him.

In other words, the act intended that the person robbed should be regarded as the owner, as against the robber, of all goods whereof he was robbed.

He must have a possession or custody of the goods or they could not be taken from the person or in his presence by violence to his person, or by putting him in fear of some immediate injury to his person.”

This construction secures all his rights to the prisoner. The other repeals the law of robbery as to every house in New York city and in the State as soon as its master leaves it. The latter result I do not think the law-makers intended. In my opinion the property may be laid as belonging either to the actual owner or to the

person

robbed.
The judgment should be affirmed, with costs..
All concur.
Judgment affirmed.
SICKELS--VOL. IV.

56

Statement of case.

William G. Zinn et al., Respondents, v. THE NEW JERSEY

STEAMBOAT COMPANY, Appellant.

A common carrier has not performed his contract as carrier until he has deliv

ered or offered to deliver the goods to the consignee, or done what the law esteems equivalent to delivery. When the consignee is unknown to the carrier, a due effort to find him and notify him of the arrival of the goods is a condition precedent to the right to warehouse them; and if a reason. able and diligent effort is not made, the carrier is liable for the consequences of the neglect. What is due and reasonable effort and diligence depends upon the circumstances of each case, and is a question of fact

for the jury. Where, because of neglect of the carrier to find the consignee, and the conse

quent delay in delivery of the goods, they have depreciated in value, the fact that the consignee after receiving notice neglects to remove them in a reasonable time does not raise a question of concurrent negligence. After such notice and reasonable time, the goods are at the risk of the owner, and the carrier is not liable for subsequent depreciation. The duties of carrier and consignee are not concurrent, but in succession, that of the latter growing out of the performance of duty by the former, and their acts of negligence cannot contribute to the same injury.

(Argued May 3, 1872; decided May 21, 1872.)

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

This is an action to recover damages alleged to have been sustained by plaintiffs in consequence of defendant's neglect to fulfill the obligations resting upon it as a common carrier.

On the 15th day of October, 1866, the firm of T. C. Wood & Co., of Augusta, Michigan, shipped to the respondents by the Michigan Central Railroad Company two boxes of merchandise, marked “Zinn, Aldrich & Co., New York.”

On the 27th day of October, 1866, they were delivered to defendants at the city of Albany to carry to the city of New York. The goods arrived in New York on the 28th of October. Defendant made no personal delivery of them to plaintiffs, and sent them no notice of the arrival of the goods. On

Statement of case.

the 30th of October the goods were taken from the dock by the carman of the appellants and stored with Sharp & Parsons, public warehousemen, at No. 357 Washington street, in the city of New York.

Plaintiffs occupied the stores Nos. 80 and 82 Leonard street, New York city. They were dry goods jobbers and shippers of goods. The appellant did not inquire for Zinn, Aldrich & Co., of any person by the name of Zinn. The first information plaintiffs received that the goods had arrived was on the 16th of February, 1867. They received them on or about the 15th of April, 1867, from Sharp & Parsons. The goods had depreciated in value before notice, and were worth less on the 15th of April than on the 16th of February.

On these facts the jury found a verdict for respondents for $130.69. Defendant's counsel moved for a new trial on the judge's minutes, which was denied, and on motion of appellant's counsel it was ordered that the exceptions herein be heard in the first instance at General Term.

W. P. Prentice for the appellant.

Henry N. Beach for the respondents. Appellant's exceptions to the rulings of the court cannot be sustained, not being specific. (Fountain v. Pettee, 38 N. Y. R. 184 ; Mallory v. Perkins, 9 Bosw., 572; Jackson v. Hobby, 20 Johns., 357; Elwood v. Diefendorf, 5 Barb., 398; Pearson v. Fiske, 2 Hilt., 146; Binsse v. Wood, 37 N. Y., 526.) The question of negligence was for the jury to decide. (Harris v. N. J. R. R. Co., 20 N. Y., 238.) Appellant waived its exception to the judge's refusal to nonsuit plaintiffs by putting in further evidence. (Colegrove v. H. and N. H. R. R. Co., 6 Duer, 382.) Notice to the owner or consignee of the arrival of goods and a reasonable time and opportunity after notice to remove them are in lieu of personal delivery so far as to change the strict liability of the carrier to that of a warehouseman. (McDonald v. West. R. R. Corp., 34 N. Y. R., 501; Northrop v. S. B. and N. Y. R. R. Co., 2 Tiff. Op., 186,

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