the instruments belonged to McArthur and one to the plaintiff. On February 21, 1901, McArthur, being at Des Moines, wrote defendant's agent at Marshalltown: "Kindly ship to Peter Schaefer, Chicago, Ills., two slot machines; the one that was returned from Tama and the other you will find at the Tremont Hotel." The reference in this letter to the "one returned from Tama" appears to have been understood as directing attention to a machine which had been received for McArthur from that place and had been delivered by defendant at the hotel. On receipt of the letter the agent gave it to defendant's driver, and directed him to go to the hotel and get the machines therein called for. The driver applied to the landlord or manager of the hotel, and, being told that the machines were down in the baggage-room, went to the place designated, and, finding two slot machines there (and only two, according to his statement), took them to the defendant's office, where they were billed and shipped to Chicago. On March 5, 1901, McArthur, having discovered that one of the machines shipped to Schaefer belonged to plaintiff, notified defendant's agent at Marshalltown of the mistake, and asked to have the right instrument obtained from the hotel and forwarded to same address, which was done accordingly. Plaintiff's machine was never returned.

The appeal is based principally upon the proposition laid down in Hutchinson on Carriers (2d Ed.), § 115, to the effect that a common carrier "accepting goods for carriage in good faith from a person not the owner, but in apparent control of them, and able immediately to assume the actual custody of them, and after carriage to the destination delivers them again to such person, is not liable to the true owner as for conversion." The principle here announced may be conceded to its fullest extent without requiring a reversal of the judgment in this case. Neither the plaintiff nor McArthur, nor any other person having apparent possession or control of this machine, delivered it to the defendant. Its agents acting, it is true, in entire good faith undertook, in excess of its ordinary duties as common carrier, to select and identify the machines as called for by McArthur's letter, and in so doing unfortunately took one belonging to the plaintiff. If A, having a horse feeding in the same pasture or stable with the horse of B, request a carrier to get his animal, and ship it to another place, and the carrier by mistake takes possession of the animal belonging to B, it would be a hard rule, indeed, which would deny the latter any remedy against the party by whose error or trespass his property has been lost. The mistake in the present case was not chargeable to McArthur, for he did not direct defendant to ship this machine. Neither was it chargeable to the hotel proprietor, who did not attempt to select or point out the machines belonging to McArthur. Still less can it be said that the plaintiff himself was in any manner to blame for the confusion by which he

has been made to suffer damage. The judgment of the District Court has sufficient support in the record. . .

There appears to be no reversible error in the record, and the judgment of the District Court is affirmed.

492. HOLLINS v. FOWLER. (1875. L. R. 7 E. & I. App. (H. L.) 757.) Blackburn, J.: However hard it may be on those who deal innocently and in the ordinary course of business with a person in possession of goods, yet, as long as the law, as laid down in Hardman v. Booth, is unimpeached, I think it is clear law, that if there has been what amounts in law to a conversion of the plaintiff's goods, by any one, however innocent, that person must pay the value of the goods to the real owners, the plaintiffs. . .

...

. . . But we cannot act on any notions of hardship. When a loss has happened through the roguery of an insolvent, it must always fall on some innocent party; and that must be a hardship. Had the Legislature thought fit to make a sale in the cotton-market at Liverpool equivalent to a sale in market overt, the loss would have fallen on the plaintiffs. As it is, it falls on any one who has done what the law esteems a conversion. . . . We must, I apprehend, in such cases look only to the question, whether on the established principles of law the complaining party makes out that the loss should fall on the innocent defendant rather than on himself, the equally innocent plaintiff. If, as is quite possible, the changes in the course of business since the principles of law were established make them cause great hardships or inconvenience, it is the province of the Legislature to alter the law. That has been done to a considerable extent by the Factors' Acts.1

1 [TOPIC 2. PROBLEMS:

The defendant operated an electric street-car at night without a headlight, and the plaintiff was injured thereby. Is the defendant responsible per se? (1892, Rascher v. R. Co., 90 Mich. 413, 51 N. W. 463;, 1894, McGee v. R. Co., 102 Mich. 107, 60 N. W. 293.)

The defendant left some railroad cars standing on a track in a highway, and while coupling a car to them, injured the plaintiff. Is the defendant responsible per se? (1894, Louisville & N. R. Co. v. Popp, 96 Ky. 99, 27 S. W. 992.)

The defendant and the plaintiff went out hunting together, each agreeing to take a certain part of the river-bank. The defendant went to a part different from that agreed on, and by mistake shot the plaintiff. Is the defendant responsible per se? (1909, Rudd v. Byrnes, 156 Cal. 636, 105 Pac. 957.)

The defendant and the plaintiff went out hunting together. As the defendant was walking behind the plaintiff, the former's gun went off accidentally and shot the plaintiff. Is the defendant responsible per se? (1895, Winans v. Randolph, 139 Pa. 606, 32 Atl. 622.)

The plaintiff was in a telephone booth, conversing. The defendant stood without, and, in the course of a dispute with some one else, struck and broke the glass of the booth, and a piece of the glass injured the plaintiff's eye. Is the defendant responsible per se? (1908, Schmitt v. Kurrus, 234 Ill. 578, 85 N. E. 261.)

The defendant set fire to some brush on the highway, to clear it off. The fire spread and damaged the plaintiff's property. Is the defendant responsible per se? (1907, King v. Norcross, 196 Mass. 373, 82 N. E. 17.)

W. forged a bill of lading for wheat of the plaintiff's in transit, obtained the wheat, and delivered it to the defendants as his factors. They were unaware of the fraud. At W.'s order, they sold the wheat and sent the proceeds

Topic 3. Keeping Animals

SUB-TOPIC A. DAMAGE BY ENTRY ON LAND

494. REGISTRUM BREVIUM (ed. 1595; fol. 94). Quare vi & armis clausum ipsius prioris apud L. fregerunt, & blada in garbis ac foenum in tassis sua ad valentiam centum solidorum ibidem inuenta cum quibusdam auerijs depastus est, conculcauit, & consumpsit, & alia enormia &c.

to W. Are they responsible in trover? (1902, Johnson v. Martin, 87 Minn. 370, 92 N. W. 221.)

Plaintiff agreed to sell land to M.; one half of the crop was to be plaintiff's and was to be delivered by M. to the defendant elevator-company in the plaintiff's name. M. delivered it to defendant, but took the storage-tickets in his. own name, then sold the grain, and on the sale the defendant shipped the grain out of the State to the vendee. Was the defendant responsible in trover? (1898, Towne v. Elevator Co., 8 N. D. 200, 77 N. W. 608.)

The defendant left a freight-car standing in the highway; the plaintiff's horse took fright at it and ran away, injuring the plaintiff. The horse was of ordinary gentleness. Is the defendant responsible per se? (1853, Gilbert v. R. Co., 51 Mich. 488.)

The defendant railroad ran a train through a city of 17,000 population at a speed of 25 miles an hour, and the plaintiff was injured thereby. Is the defendant responsible per se? (1894, Tobias v. R. Co., 103 Mich. 330, 61 N. W. 514.)

The plaintiff was unlawfully trying to tear up railway tracks which the defendant was protecting. The defendant's gun accidentally went off, and shot the plaintiff. Is the defendant responsible per se? (1897, Shriver v. Bean, 112 Mich. 508, 71 N. W, 145.)

The defendant was shooting at a target with an airgun. One shot accidentally hit the plaintiff in the eye. Is the defendant responsible per se? (1897, Chaddock v. Tabor, 115 Mich. 27, 72 N. W. 1093.)

The defendant had been out hunting, and found that his gun would not work. He sat in a room trying to discover what ailed it. He thought he had taken out all of the cartridges, but in fact had not. The gun accidentally went off, and shot the plaintiff, who was in the room. Is the defendant responsible per se? (1897, Bahel v. Manning, 112 Mich. 24, 70 N. W. 327.)

The defendant was employed by C. to cut grass. Not knowing where the boundary line was between C.'s land and the plaintiff's, he unwittingly cut over a part of the plaintiff's land. Afterwards other employees gathered up and took off the grass. Is the defendant responsible per se? (1887, Donahue v. Shippee, 15 R. I. 453.)

The defendant and others were shooting pheasants. The plaintiff was employed by one of the party to carry cartridges. The defendant, in shooting at a bird, shot the plaintiff by accident, the bullet having apparently glanced from an intervening tree. Is the defendant responsible per se? (1891, Stanley v. Powell, 1 Q. B. 86.)

The defendant was out hunting wolves, and shot by mistake the plaintiff's dog, who looked like a wolf. Is the defendant responsible per se? (1888, Ranson v. Kitner, 31 Ill. App. 241.)

The plaintiff's dog was on the defendant's land. The defendant, intending only to scare it off, shot in the dog's direction, but struck and killed the dog. Is the defendant responsible per se? (1897, Harris v. Eaton, 20 R. I. 81, 37 Atl. 308.)

The plaintiff and the defendant were playing at a school recess. The defendant had a bow and arrows. The defendant said, "See me shoot that basket,”

495. RUST v. LOW

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1809

6 Mass. 90

THIS was a replevin of cattle. The defendants, as bailiffs of Abigail Trask, well acknowledge the taking and detaining them as

and shot an arrow. The plaintiff, who had been hiding behind a fire-screen in fear of the arrow, raised his head at that moment, and the arrow struck him and put out his eye. Is the defendant responsible per se? (1829, Bullock v. Babcock, 3 Wend. 391.)

P. took a cow to the defendant, an auctioneer, with instructions to sell. M. offered £11 for the cow. The defendant communicated the offer to P., who accepted it. The money was paid by M. to the bank to the defendant's account, and the defendant paid it to P. In fact, P. was not the owner of the cow, having already sold it to the plaintiff. Is the defendant responsible? (1887, Turner v. Hockey, 40 L. T. N. S. 746.)

The defendant, a surgeon, performed an operation on the plaintiff's leg. But instead of operating on the left leg, as agreed, he operated by mistake on the right leg. Is the defendant responsible per se? (1898, Sullivan v. McGraw, 118 Mich. 39, 76 N. W. 149.)

The defendant drove a herd of cattle from his home near Boston to pasture in New Hampshire. The plaintiff's cow, loose in the highway, joined the herd. The defendant, on counting the herd, found that it tallied; but in fact one of their own cows, unknown to them, had strayed away. On returning from placing the cows in pasture, the defendant was visited by the plaintiff, who demanded his cow, but the defendant denied that he had it. Was there a conversion? (1844, Wellington v. Wentworth, 8 Met. 548.)

The defendant left his cart and horse untied in front of the plaintiff's shop. Some passer-by struck the horse, and it backed up against the plaintiff's shopwindow, thereby breaking the window and some china therein. Was the defendant responsible per se? (1881, Illidge v. Goodwin, 5 C. & P. 190.)

The defendant was driving a pair of horses, with a load of grain for the mill. A passing locomotive frightened the horses; they became unmanageable and ran away, striking a stone post belonging to the plaintiff. The post was near the highway, and bore a street-lamp. No lack of care or skill in managing the horses was shown by the defendant. Is he responsible at peril? (1873, Brown v. Collins, 53 N. H. 442.)

The plaintiff was sub-tenant under a tenant of the defendant. After a dispute between the tenant and the defendant, the defendant resumed possession by legal proceedings, which were however void and left him nevertheless a trespasser. He removed the plaintiff's goods and tore down a stable building erected by the plaintiff; the plaintiff being at the time absent. In the stable, in a feedbox, and in a tin box therein, the plaintiff had been keeping some money, amounting to about $2000; this money was stolen or lost by the persons who tore down the stable for the defendant. Is the defendant responsible per se for the money? (1875, Eten v. Luyster, 60 N. Y. 252.)

NOTES:

"Automobile: Care required of an operator." (A. L. Reg., 51 O. S. 109.) "Carrier innocently transporting goods wrongfully shipped."

XIV, 233.)

"Automobiles: Dangerous machines, Liability of owner." VIII, 146).]

(H. L. R.

(M. L. R.,

damage feasant in the close of the said Trask. To this conusance the plaintiff pleads in bar, that he is seised of a close called Biscay Island, which is enclosed by a fence; that to his said close are adjoining Trask's close, the locus in quo, Riggs's close, and also Low's close; and that Low's close is also adjoining upon Trask's close; and that Low's close is adjoining Riggs's close; that the partition fence, between the plaintiff's close and the locus in quo, was and is undivided, and that he and Trask are jointly and equally bound by law to make and maintain the same; That the partition fence between the plaintiff's and Low's closes was and is also undivided, and that the plaintiff and Low are jointly and equally bound by law to make and maintain the same, but that the same partition fences are in all parts not legal nor sufficient; That the plaintiff put the cattle into his own close to depasture, whence they escaped into Low's close, through the insufficiency of the partition fence, thence into Riggs's close, for want of any partition fence between those closes, and thence into the locus in quo, because there was no partition fence between Riggs's and the locus in quo.1

To this plea the defendants demur generally, and the plaintiff joins in demurrer. The cause was argued, at the last November term in this county, by Prescott and Andrews for the plaintiff, and Dane and Story for the defendants.

For the defendants. . . . It is not alleged in the bar that Trask was bound to make the fence between her and Riggs, and in excuse of a confessed trespass the Court will presume nothing. At common law, no man is bound to fence his close against his neighbor's adjoining field; but every man is bound to keep his cattle within his own close at his peril; and an obligation to maintain a fence could only arise by covenant or prescription. Further, at common law, if a man be bound to make the fences of his close, this duty extends only as against the owner of the adjoining close, or some person having an interest therein, but not as against strangers; and therefore, if the cattle of a mere stranger escape into the close from defect of fence, trespass lies.3

2 Fitzherbert, Natura Brevium, 128; 22 H. VI, 9; Broke, Abridgment, Trespass, 345, 439; 16 H. VII, 14; 13 Viner, Abridgment, Fences, A., cites Dyer, 372, pl. 10; 20 Edw. IV, 10; 6 Mod. R. 314.

3 Salkwill v. Milwarde, 22 H. VI, 23; 22 H. VI, 7, 8; Broke, Abridgment, .Curia Claud. 2, Tresp. 145, 321, 439.