Shotwell v. Wendover — 1 Johns. 65

Majority

p. 65

Shotwell against Wendover.

Headnote

In trover, the court will not. order articles which have been tendered to the plaintiff and refused, to be struck out of thededaration; for the plaintiff may claim damages for their deterioration. Machines and tools of a man’s trade, are not allowed to be brought into court in an action of trover.

EMOTT, in béhalf of the defendants, moved that certain articles, enumerated in. an affidavit, being chiefly tools and implements, belonging to the plaintiff as a block-maker^ should be struck out of the plaintiff’s declaration, on the ground, that since the commencement of the present suit, which Was an action of trover, the defendant had offered to return them to the plaintiff, who had refused to accept them.

Radcliff, contra,

read an affidavit, that the articles for which this suit was brought, had been in the possession of the defendant above nine months ; and, that during that time, he had refused to deliver them, though he had been frequently applied to for that purpose; that ihe articles consisted of machinery and tools, necessary to the plaintiff in his trade, and for the want of which he had suffered much inconvenience and damage ; and that they Were of such a nature as to grow worse by use, and length of time. He contended, that the notice of the defendant of this application was defective, in not stating the condition of the articles, and that it' ought to have shown, at least, that they were not deteriorated, otherwise, they might be returned to the plaintiff in such a state, as to be useless, and of little, or no value. If the court should order them to be struck out of the declaration, the plaintiff would be deprived of the means of being indemnified, for the injury he had sustained by the deterioration of them while in the wrongful possession of the defendant. Besides, he asked, will the court permit articles of a ponderous nature, which cannot be brought into court, in an action of trover, to be tendered, in this manner, out of court ? Articles tendered in this action must be of a fixed and unchangeable value; the conversion of them should appear not to have been wilful, or of such a nature as to enhance the damages. 3. Burrows 1364.^[1] All these circumstances should be made to appear to the satis

p. 66

faction of the court, in order to entitle the defendant to the extraordinary interposition, now solicited in his favour.

The plaintiff has a right to claim damages for the use of the articles, and for their deterioration, while in the possession of the defendant. By striking them out of the declaration, the plaintiff would be deprived of his remedy for those damages. .The articles, too, are not such, as are proper to be brought into court.

Rule refused.