41 N.H. 283 | N.H. | 1860
Tbe instructions wbicb were requested to be given to tbe jury were properly withheld. This question is settled in Phelps v. Grilchrist, 28 N. H. 266, where it is held that any other officer beside tbe one who made tbe attachment, may make the demand upon the receiptor as tbe agent of the attaching officer; and if be makes de-jnand without showing or stating bis right or authority thus to demand it, yet, if his authority be not questioned at the time of demand, it will be considered as admitted, and the objection waived. But if he were to show the ■written receipt, and make the demand upon it, that would be sufficient evidence of his authority, at least primd fade; and in such case no demand need be made upon the attaching officer. See also Lovell v. Sabin, 15 N. H. 37 ; Stewart v. Platts, 20 N. H. 476. The case cited by the respondent’s counsel is not in point, but is to the effect that when one officer, to whom the execution is delivered, makes a demand in his own right, within thirty days after judgment, for the property attached, upon the officer who attached it, this fixes his liability; and that the receiptor is also liable to the officer to whom he gave the receipt, whether the property is demanded of him within the thirty days or not. Allen v. Carty, 19 Vt. 65.
The rule of damages, as stated by the court, being the
Butitis saidthatto constitute a conversion there mustbe a positive tortious act; th at a mere negligen ce i s not sufficient; that a demand, and a refusal to deliver the property, when that refusal is explained as in this case, does not amount to a conversion, and therefore that an actual conversion must be shown; and that letting the horses die for want of ordinary care was only a negligence, and not such tortious act as amounts to a conversion.
A demand and refusal, under the circumstances of this case, probably would not alone amount to a conversion, or be sufficient evidence of one. But we cannot see any good reason for a distinction between killing a horse by blows, and starving him to death by merely neglecting to feed him. The receiptor’s failure to act in one case, his neglecting to act when the law and the obligations of his contract all impose upon him the duty to act, has the same effect, produces the same result, that acts of violence would do in the other ease. As well might it be claimed that a mother, who should starve her child by simply neglecting to feed it, when she fully understood the force of her natural and moral obligations to do so, was not guilty of murder, because she did not cause its death by any direct act of violence, as to claim that it would not be a conversion
There remains but one other point to be considered;— the correctness of the instructions to the jury, that, in order to have the death of the horses avail the defendant as a defence, he must introduce some evidence tending to show that he did not cause their death; thus holding that the defendant must not only show the horses dead, but that he did not kill them. Here it did not appear that the knowledge of their death, or the cause of it, was peculiarly within the knowledge of the defendant, for the defendant’s agents, who had charge of the horses, were competent witnesses for either party; and the ruling, we think, must be held to be erroneous. Officers acting under oath, or in whom, the government imposes a trust, are presumed to have done their duty till the contrary is proved. Jackson v. Shaffer, 11 Johns. 513; Bliss v. Ball, 9 Johns. 132; Gil-man v. Holt, 4 Pick. 258; Hills v. Colvin, 14 Johns. 132. But the law goes further, and presumes that not only an
The nature of the bailment in this case being that of a common deposit, the bailee cannot be required to exercise more than an ordinary care. Phelps v. Gilchrist, 28 N. H. 272. Nor would the other ruling, as to the preponderance of the evidence, remedy the effect of this erroneous ruling.
If there had been any evidence in relation to the manner of the death of both horses, the instructions might have been well enough, perhaps, taken all together, as the jury might then have settled the whole matter upon the balancing of probabilities as to the cause of the death, as well as the general treatment, of the horses. But upon the instructions given, the jury not being furnished with any evidence by the defendant as to how one horse died, would of course hold the defendant answerable, upon the ground that he was chargeable unless he showed affirmatively that he was in no way the cause of the death; whereas, as we have seen, in the absence of proof, the presumption of law is the other way, — that the receiptor was not guilty of any culpable neglect of duty, or of any act of violence which caused the death.
Upon this ground the verdict must be set aside, and
A new trial granted.