Book Description

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1901 edition. Excerpt: ...title, he offered to relinquish his claim to the plaintiff, who was the real owner: but the latter refused to accept the wagon, and brought trover against the creditor who had directed the levy. The acts of the constable were held not to have been a conversion; the court remarking that the actual possession of the property was not changed, and the plaintifi had been put to no charge concerning it. The learned judge who delivered the opinion of the court, referred in a general way to Reynolds v. Shuler, 5 Cowen, 323, and Bristol v. Burt, 7 Johns. R. 254. The question was considered in those cases; but, with deference, I understand them both to hold that such acts as were proved in Bailey v. Adams, would clearly amount to a conversion; ami that even an actual acceptance of the goods by the owne:, much less a mere offer to deliver them, could no farther qualify the wrong, than by reducing the damages. W intringham v. Lafoy, 7 Cowen, 735, was not cited. That case held the officer liable in trespass de banis asportatis, though he merely claimed to have levied, taking an inventory and receipt. The decision was also incompatible with the rule laid down in Allen v. Crary, IO Wend. 349; Fonda v. Van Home, 15 Id. 631, 633, and many other cases. The injury being complete, it is clear that a tender of the property will not affect the plaintiff's rights. Clark v. Hallock, I6 Wend. 607; Han-mer v. l-Vilsey, 17 Id. 91. It is said in the latter case, and so are all the authorities, that even an acceptance by the plaintiff, 496 goes to the question of damages only. There is no such thing as waiving a cause of action after it has once arisen. And in the case at bar, there is no question that either trespass or trover would have lain by Burke against...