#### Adolphus Schwerin *et al.*plaintiffs and respondents, *vs.*William A. McKie, defendants and appellants.

1. Imported goods, on their passage to this country, are in the actual or constructive legal possession of the owner, importer or consignee, and so remain even when placed in the joint custody of the owner of a bonded warehouse and an United States officer of customs, to secure the payment to the United States of duties, and until then, to be taken care of.

2. The meaning of the term “ custody,” as applied to the possession, by United States officers, of merchandize, used in the acts of congress, *{act of March*28, 1854,10 *V. S. Stat. at Large, eh.*30, *p.*270, §§ 1 *and*3,) is confined to its original sense of a guard or watch for the interests of the government. It was not intended to embrace *legal possession*for all purposes.

3. Notwithstanding the “custody” given to the United States officers, by statutes, the warehouse keeper is the guardian of the interests of the owners; that is, of the goods subject to the lien for duties, and is responsible for their safe keepin'g, like any other bailee. If he neglects to exercise due diligence, he is liable to the owners of the goods.

4. In an action by the owner against the warehouse-man to recover the value of goods lost, the burden of proof, as to due diligence, is upon the defendant. The mere non-production of the subject of.bailment is *prima facie*evidence of a deficiency in the care of it.

5. After the defendant has, by an objection, excluded positive testimony of negligence, offered by the plaintiffs, he should he estopped from moving to dismiss the complaint for want of that proof.

*4056. Where the proof introduced, after a motion to dismiss the complaint, sustains the verdict, this will cure any error in the refusal to grant the motion.

7. A court is not bound, in instructing a jury, to pronounce upon every proposition that may be conceived to have some bearing on the case, but only those which the evidence either warrants, or might naturally give rise to in the minds of the jury. *Per*Robertson, Ch: J.

8. In an .action against a warehouseman for the conversion of goods, interest on the value of the goods (if allowed by the jury) is recoverable, by way of damages; it being an action for a breach of duty.

(Before Robertson, Ch. J., and Barbour and Garvin, JJ.)

Heard January 7, 1867;

decided March 2, 1868.

This is an appeal from a judgment entered at. special term upon the verdict of a jury in favor of the plaintiff, for $1543.35.

The *facts*are as follows, viz. on the 15th of April, 1864, the plaintiffs (who are' importers in this city) deposited on storage with the defendants (who are warehousemen, .keeping what is commonly known as a private bonded warehouse,) a large quantity of valuable cigars, to be by them safely kept (for a pecuniary consideration agreed to be paid by the plaintiffs) and delivered to the plaintiffs upon demand. The cigars were placed by the defendants in their warehouse, No. 69 Greenwich street, on the second story, in a small office enclosed by window sashes. When the plaintiffs delivered the cigars to the defendants the customs* *“*duties ” upon them were unpaid; and they were so deposited, in conformity with the United States revenue laws, subject to the *lien*of the government therefor until such “duties” should be paid.

The plaintiffs, from time to time, withdrew from the de-. fendants’ custody a portion of the cigars, and on or before the 30th day of April, 1864, had paid all *“*duties ” thereon, whereby the goods were discharged of all lien of the government, and were subject only to the defendants’ lien for expenses of storage thereof. Subsequently, the defendants delivered to the plaintiffs all the cigars except 52 boxes, containing 7600 cigars, which the defendants could not account for or deliver to the plaintiffs. On the 23d of August, *4061864, the plaintiffs, having previously failed to obtain these 52 boxes, made a formal demand for them, and they were not forthcoming. The plaintiffs had a verdict for the value of the cigars, and interest from date of the last demand. The defendants undertook to excuse their default by shówing the degree of care they had exercised in the premises. There was evidence tending to show some care, and evidence tending to show *negligence,*and the court submitted this evidence to the- jury with directions that the defendants were entitled to a verdict if they had “exercised ordinary care,” or if “the loss occurred without negligence by them.” The defendants also undertook to show that there was reason to believe a burglary had been committed on the premises and the cigars stolen. The court charged the jury that they should determine “ whether there was evidence to show a burglary had been committed,” and whether the cigars were thus lost, and that they should give the evidence on this subject all the weight it deserved. The defendants also claimed exemption from liability because their warehouse was a private bonded warehouse under the laws of the United States.

*St. Clair Smith,*for the appellants, defendants.

I. There is a great difference between the proprietor of a United States bonded warehouse and a common law warehouseman, both as regards the keeping of goods and liability for loss or damage.

1. The latter is a sole bailee and must exercise ordinary care. *(Schmidt*v. *Blood,*9 *Wend.*268. *Kent’s Com. vol.*2, *marg. paging*566. *Parsons on Contracts, vol.*1, p. 622 *and cases there cited.)*While the former, together with an officer of the customs, are joint custodians, and the goods are at the sole, and exclusive risk and expense of the owner, importer or consignee. (10 *U. S. Stat. at Large, p.*270, *ch.*30, §§ 1 *and*3, *act of March*28, 1854.)

2. By the common law a warehouseman has a lien for storage on the goods committed to his charge. The pro*407prietor of a bonded warehouse has no lien except in the single case of *unclaimed goods sold to pay duties,*in which case, out of the proceeds of such sale, his charges are to be paid. (10 *U. S. Stat. at Large, p.*270, *ch.*30, § 2, *act of March*28, 1854.)

3. Goods in a bonded warehouse, not only during the time that the duties remain unpaid, but also after the payment of duties, are at the risk and expense of the owner. (12 *U. S. Stat. at Large, p.*560, *ch.*163, § 21, *act of July*14, 1862, *entitled uAn act increasing temporarily the duties, on imports, and for other purposes.”)*And in case goods-while in a bonded warehouse are injured or destroyed by fire, *or other casualty,*the duties paid or accruing, are abated or refun'ded as the case may be. (10 *U. S. Stat. at Large, ch.*30, *p.*270, § 8, *act of March*28, 1854.)

II. There is a defect of parties defendant in this action.

1. The proprietors of a bonded warehouse and an officer of customs, “ shall have the joint custody of all merchandise stored in said warehouse.” (10 *U. S. Statutes at Large, p.*270, *ch.*30, § 1, *act of March*28, 1854.) The officer should have been made a party defendant. And this objection was properly taken by answer.

2. This joint custody is not merely nominal or constructive ; it is an actual, absolute joint possession.

HI. Where there is a *partial loss of goods*deposited with a warehouseman, the *onus probandi,*as regards negligence, is upon the plaintiff; where there is a- *total loss,*it is upon the defendant. *(Schmidt*v. *Blood,*9 *Wend.*268. *Platt*v. *Hibbard,*7 *Cowen,*500, *note a. Harris*v. *Packwood,*3 *Taunt.*264. *Marsh*v. *Horne,*5 *B. & C.*322. *Clay*v. *Willan,*1 *H. Bl.*298. *Jones on Bailments, 2d ed.*106, *note*40.)

. TV". That there was only a partial loss of goods in this case, is unquestionable. This appears from the pleadings and the testimony.

V. The cigars in question were in this warehouse on the 6th, and were not there on the 14th of June, 1864; it had *408been broken into through the scuttle, which was first discovered on the morning of June 14. Its fastenings, and the building itself, had been and were approved by the officer appointed by the United States • government to examine buildings to be used as bonded warehouses. This, of itself, is conclusive as to the sufficiency of the building and its fastenings.

Upon the testimony of the United States warehouse superintendent, and the evidence as to the manner in which the, store was fastened, and as to the great force required to burst open the scuttle, the court should have charged as requested by the defendants.

VI. Warehousemen are not liable if goods are stolen by their servants or agents. *(Schmidt*v. *Blood, ubi sup.)*And assuredly they are not when the goods are stolen by burglars. And the request of the defendants so to charge was was a proper one.

VII. The evidence does not disclose negligence on the part of the defendants; on the contrary, it shows the absence of all negligence, and if .there was no exception in the case, the verdict should be set aside as against evidence. Eegligence cannot be inferred. *(Tobin*v. *Munsin,*4 *N. Y. Leg. Obs.*115.)

VIII. It requires higher evidence to convict for burglary than to show that a burglary has been committed. (1 *Greenl. p.*20, § 13, *and cases there cited.)*And the judge erred in charging the jury, “that (if any one descended through the scuttle and carried off" the cigars) it was a matter of fact for them to decide, as much, as if the party, who' was charged with having thus carried them off, was on trial here for burglary.”

IX. This is an action in tort. The charge is, that the goods were lost. Interest on the value of the goods should not have been allowed. It is only allowed *in trover*by way of damages for the conversion. *(Wilson*v. *Conine,*2 *John.*280. *Bissell*v. *Hopkins,*4 *Cowen,*53. *Hyde*v. *Stone,*7 *Wend.*354.)

*409
      *Albert Mathews,*for the respondents.

I. The motion for a nonsuit was properly denied.

1. As to the negligence. The plaintiffs offered evidence tending to prove- want of ordinary.care, and, upon the defendants’ objection, it was excluded. It did not, therefore, lie with the defendants to move to dismiss the complaint for want of this proof. They were estopped by their own act; whether they so intended or not. *(Manuf. and Traders’ Bank*v. *Hazard,*30 *N. Y. Rep.*226.)

2. The *burden of proof*of the exercise of reasonable care, and of accounting for the loss, of the goods, and the privilege of endeavoring to show that it had happened from no negligence of the defendants, rested with them, when the plaintiffs had closed their proofs.

*[a.)*The plaintiffs proved the delivery of the goods to the defendants, under a special promise for hire, to safely keep and return them, and that, upon a demand thereof, the defendants had wholly failed to deliver or account for them. This made out a *prima facie*case of breach of contract, and *conversion*of the goods on the part of the defendants; it was then incumbent on them, if they could, *to excuse their default.*

(5.) The evidence on this subject of *negligence*or care against *probable*danger, must necessarily have been submitted to the jury. The rule was thus laid down by the Supreme Court, in 1827. *(Platt*v. *Hibbard,*7 *Cowen,*501,) and has been followed in all subsequent cases of authority, where this question has arisen. *(Willard*v. *Bridge, 4 Barb.*367. *Van Horn*v. *Kermit, 4 E. D. Smith,*457. *Arent*v. *Squire,*1 *Daly,*347. *Bush*v. *Miller,*13 *Barb.*489. *Newstadt*v. *Adams,*5 *Duer,*46.) The distinction made in some of the cases, that under certain circumstances, the-plaintiffs must themselves first prove the negligence of the defendants, cannot be taken in this case for the reasons that, *first,*the plaintiffs had proved a technical conversion of the goods; and, *secondly,*there was a “total default to deliver the goods bailed,” or to account for them. *(Platt*v. *Hibbard,*7 *Cowen,*
      *410500, *n. Beardslee*v. *Richardson,*11 *Wend.*26.) In the case of *Knapp*v. *Curtis,*(9 *Wend.*60,) the destruction of the property bailed having been shown to have resulted from inevitable casualty, *without default of the bailee,*the question now under discussion did not arise. In the case of *Schmidt*v. Blood, (9 *Wend.*268,) it having appeared *affirmatively,*that the goods bailed had been stolen by the servant of the bailee, and there being no presumption or evidence of negligence on the-part of the bailee, this question did not arise, and the court merely say *obitur,*“the *onus*of showing negligence, *seems*to be upon the plaintiff, *unless there is a total failure in delivering or accounting for the goods.” (Seep.*271.) In the case of *Foote*v. *Storrs,*(2 *Barb.*326,) there was no question upon whom rested the burden of proving negligence of the bailee; there *was*evidence tending to show that no loss had happened, and that the loss, if any, had happened through the fault of the bailor; and also tending to show that the bailee had exercised due care. *(P.*327.) The referee, upon all the evidence, found as *matter of fact,*that the loss was not owing to the fault of the bailee. The question now under discussion did not arise. The distinction referred to, was not adverted to. The remarks of the judge,■ even upon the general rule, were *obitur.*In the case of *Wiggins*v. *Hathaway,*(6 *Barb.*632,) the bailee was- without hire; he was a public officer, not liable for the acts or omissions of his servants; there was no evidence that the' property in question had ever come to his possession, nor any proof of á demand, and failure to deliver the property to the alleged bailor.

*{e.)*The same rules of evidence are applied in cases of carriers of passengers, where the liability arises *only*from negligence. *(Wilkie*v. *Bolster,*3 *E. D. Smith,*332. *Holbrook*v. *U. and S. R. R. Co.,*16 *Barb.*116. *Stokes*v. *Saltonstall,*18 *Peters,*181.)

*{d.)*The same rule applies in analogous cases of common carriers of goods, and of innkeepers. *(Clute*v. *Wiggins,*
      *41114 *John.*175. *Finn*v. Timpson, 4 *E. D. Smith,*278. *Van Wyck*v. *Howard,*12 How. *Pr.*147.)

(e.) The same doctrine has repeatedly been held in other states in cases of ordinary bailees for hire. *(Beekman*v. *Schous,*5 *Rawle,*189. *Clark*v. *Spencer,*10 Watts, 337. *Alden*v. *Rearson,*5 *Gray,*348. *Logan*v. *Matthews,*6 *Penn. Rep.*419. *Cox*v. *O’Reilly, 4 Ind. Rep.*371.)

(/.) Any other rule would be unreasonable and unjust. The bailor cannot account for the non-delivery of the property. The bailee is the custodian, and knowledge of what has happened to it rests exclusively with him; the bailor is ignorant from the necessity of the case. The bailee is put in the wrong by his failure to surrender the property upon demand; he ought to excuse his default and rebut the presumption naturally arising from this circumstantial evidence against him; otherwise there would be great temptation to ' fraud, or concealment of negligent cause of loss, and the bailee might set the bailor at defiance.

3. Evidence was adduced *tending to prove negligence,*and it is settled that “ the court will not disturb a verdict on the ground that the proof was insufficient, when the non-suit was moved for, in cases where the deficiency was after-wards supplied.” *(Kent*v. *Harcourt,*33 *Barb.*495.)

4. Moreover, there was some positive proof of negligence, when the plaintiff rested.

II. The circumstance that the defendant was keeper of a private bonded warehouse under the revenue laws of the United States, did not exempt him from liability for loss of the goods. *(Arent*v. *Squire,*1 *Daly,*347, *et seq. Grinnell*v. *Oelricks, MS. N. Y. C. P., Nov.*25, 1865, *per Brady, J.)*

1. The acts of Congress contain no provision exempting the warehouseman from his common law obligation to exercise ordinary care and prudence in keeping goods entrusted to him. *(Brightly’s U. S. Dig. p.*488, §§ 296-299, *andp.*1222, § 58.)'

2. On the part of the government of the United States, there is .no obligation *towards the owner*of the goods to *412exercise any care whatever over them. That obligation falls exclusively upon the warehousemen, by giving bond to the United States government exempting it from all liability in the premises. The government are *quasi*custodians of the goods, exclusively for their own benefit, and merely to protect their *lien*for duties. *(Brissac*v. Lawrence, 2 *Blatch. Cir. Ct. Rep.*121.) The title and legal possession of the goods were vested absolutely in the plaintiffs; the relationship of bailor and bailee subsisted *only*between them and the defendants. *(Mottram*v. *Heyer,*1 *Denio,*483. *S. C.*5 *id.*632. *Waldron*v. *Romaine,*22 *N. Y. Rep.*368.) The custody of the officer of customs was not in judgment of law, a *possession*of the goods, but rather a qualification of the possession which was vested in the keeper of the bonded warehouse. It was a mere *restraint upon removal*(before the duties were paid,) while the actual possession was in the defendants, who were - the sole agents of the plaintiffs in the premises. *(Cartwright*v. *Wilmerding,*24 *N. Y. Rep.*536.)

3. In this case, the “ duties ” having been paid, the lien of the government for duties was discharged. Although *if*the defendants had discharged their obligation, and safely kept the goods, the plaintiffs *(if they had so chosen) might*have elected to allow the goods to remain in custody of the officer of the customs, and *might*have exported the goods back to' Cuba, *(if so disposed,)*and reclaimed the duties paid by them, less one per cent; they never did so; and there is neither evidence nor presumption they expected or intended to do it; the goods, therefore, remained unquestionably in the *exclusive*custody of the defendants.

4. The defendants were bound to advance all the expenses of the custody of the goods, including the salary of the United States officer, and reimburse themselves by receiving the compensation paid by the plaintiffs for the storage of the goods. *(Corble*v. *Maxwell,*3 *Blatch.*419.)

5. After the “duties” were paid, the plaintiffs did not *413further consult the officer of the customs about the custody or delivery of the goods.

ITT There was no error in the admission or exclusion of evidence on the trial, to the prejudice of the defendants. The evidence as to *interest*upon the value of the goods, from the time of the defendants’ final failure to deliver them to the plaintiffs upon their demand, was properly admitted. The defendants having failed to account for the goods, and *the loss arising from their fault,*the true measure of damages was the value of the property at this time, and interest thereon to the time of the trial. Still, if there were any error in this respect, it could be corrected by a deduction from the verdict. *(Willard*v. *Bridge,*4 *Barb.*368. *Sherman*v. *Wells,*28 *id.*403. *Dana*v. Fiedler, 12 *N. Y. Rep.*51. *Andrews*v. *Durant,*18 *id.*502.)

IV". There was no error on the part of the court in refusing to charge the “ *twelve*” propositions requested by the defendants, further than they were embraced in the charge as actually given to the jury. . '

1. The first three propositions were already disposed of upon the motion for a nonsuit.

2. The next two are based upon the unfounded assumption that a bailor for hire is liable only for loss by *gross*neglect; whereas it is undisputed that he is at least bound to exercise that degree of ordinary care and diligence which a prudent person exercises about his own affairs; and that he is liable for any loss happening to property entrusted to him for safe keeping, unless he excuses- himself by reason of having exercised such care, and the loss having happened without his fault. (2 *Kent’s Com.*565.)

3. The next was too broad. The liability of the defendants would not have been excused by a “ burglary” unless they had exercised due care and were free from neglect. The judge properly presented this matter to the jury in his charge. They were told, the defendants were not responsible if the jury believed the cigars were lost by a burglary, or otherwise, without the negligence of the defendants. *414Besides, the charge of the judge substantially covered the proposition as requested, and this cured the error, if any. *(Decker*v. Mathews, 12 *N. Y. Rep.*320.)

4. The next proposition (7th) was not well founded. It had already been decided upon the refusal to nonsuit. The question was not so much whether there was evidence of negligence, as whether there was evidence of ordinary care and prudence. The evidence on the subject was properly submitted to the jury by the court in the charge, and its weight left to their determination. Whether there was negligence or want of care was a question of fact arising out of the circumstances detailed, and exclusively within the province of-the jury to decide. *(Ireland*v. *Oswego R. R. Co.,*13 *N. Y. Rep.*533. *Bernhardt*v. *R. and S. R. R. Co.,*19 *How. Pr.*204. 22 *id.*168. *Keller*v. *N. Y. Central R. R. Co.,*24 *id.*174. *McGrath*v. *Hudson, R. R. R. Co.,*32 *Barb.*147.) The fact that the defendants did not notify the plaintiff, of the absence of the cigars until the latter failed to find them, and the entire failure of the defendants to prove they had been stolen, or account for the loss otherwise, coupled with the fact of instances of carelessness in closing the building at night, with the other facts proved in the case, were not very well calculated to encourage the belief, that the defendants had exercised the same care prudent men use about their own property.

5. The three next' propositions (8th, 9th, 10th) involved immaterial and *abstract*inquiries. It was unimportant how other stores of this description were secured. The question was if in *this*store *these*goods were kept with the care of .a person of ordinary prudence, &c.' So far as these three propositions were legitimate, they were fairly submitted to the jury. The court was not bound to take the precise words of the requests. It is enough that the charge substantially covers the points suggested. *(Decker*v. *Mathews,*12 *N. Y. Rep.*320.)

6. The last two propositions were also abstractions not *415arising in the ease, except so far as they were fully covered by the judge’s charge.

V. The exceptions to the charge of the court as actually given are already discussed. The whole charge is to be taken together. All that was said about “burglary” was a proper instruction to the jury in connection with the evidence, to enable them to determine how far the defendants had succeeded in establishing their theory, that the cigars had been lost “ by some one descending through the scuttle, and carrying them off.”

VI. The sole question involved in the case was one of fact for the jury. It cannot be denied there was some evidence on both sides, (though somewhat in conflict,) upon the issue tried. This evidence was submitted to the jury with a charge very favorable, in many respects, to the defendants. Tfle judgment should therefore be affirmed.

1. The defendants theory of a burglarious entry of the premises and taking of the goods in question was not sustained by the proof. The jury (who were the exclusive judges of the weight and effect of the evidence,) properly refused to believe the goods were carried off in this manner. Indeed, it did not appear but that the scuttle was negligently open several days and nights after it was broken, and before the fact was discovered by the defendants; that is to say, from Saturday, June 11, until Tuesday, June 14.

2. The defendants utterly failed to account for the absence of the cigars, or to explain the non-production of them. If this happened through suppression of what they knew, it raises a presumption of fraud. If they could not tell what had become of the goods, this ignorance raises a presumption of negligence. Prudent men generally know where their property is, or can given some plausible account of its loss.

3. The verdict of the jury should not be disturbed, although the court itself, might suspect it would have come to a different conclusion upon the evidence as it now appears in print, abbreviated and condensed into a .narrative form. *(Donohue*v. Henry, 4 *E. D.*Smith, 164. *Cohen*v. *416
      *Dupont,*1 *Sandf.*262. *Gardner*v. *Ryerson,*19 *How. Pr.*109. *Mackey*v. *N. Y. Central R. R. Co.,*27 *Barb.*528. *Williams*v. *Vanderbilt,*29 id. 504. *Smith*v. *Tiffany,*36 id. 25.)

By the Court, Robertson, Ch. J.

The most prominent question in this case is one of law, to wit, whether the defendants could be sued alone, without joining the officer of the customs of the United States, in whose custody, jointly with theirs, it is assumed the goods in controversy were placed; and if not, whether the United States officer can be made responsible for the loss of such goods.

The act of Congress of March 28, 1854, (10 *U. S. Stat. at*Large, 270, *ch.*30; *Brightly's U. S. Dig.*488, §§ 296-299,) by its first section provides that goods subject to duty may be stored, at the expense and risk of the owners in a private warehouse, used exclusively for such purpose, and approved of by a government officer, (secretary of the treasury,) in charge of a proper officer of the customs, who, with the owner of such warehouse, “ should have the joint custody of such goods.” But all labor on such goods is to be performed by such warehouse keeper at his own expense. Its third section requires such warehouseman to give a bond, to hold “ the United States and its officers harmless from, or on account of, any risk, loss, or expense of any kind or description, connected with or arising from the deposit or keeping of the merchandise of the warehouse.” And it declares that all goods so deposited shall be at the risk and expense of their owner. The 4th section of such act provides against any abatement of duties or allowance “for any injury, deterioration or loss sustained'by goods so deposited.” A subsequent act, passed in 1862, *(Brightly’s Digest,*1222, § 58,) provides that, after the payment of duties on merchandise, they may still remain in such warehouses, *in the custody of*such United States officers, but *at the expense and risk of the owners,*and that the latter shall be entitled to ninety-nine per cent of the duties on exporting them directly to a foreign country.

*417The purposes of these statutes is very plain. It was, at the same time, to give credit to the importer for duties, while securing for the government their payment. The system of the latter having stores of their own for the deposit of imported goods, was thus dispensed with; and private individuals, on securing the government against loss, were allowed to become depositaries of them for the joint account of the government and the consignees. In addition to that, in order further to protect the government, one of its officers of the customs was made a joint custodian with the warehouse keeper of the dutiable goods. Whatever .lien the warehouseman may have for storage, is postponed to the right of the government for its duties, (probably because he still holds the liability of the consignee,) except that where unclaimed goods are sold, by the second section of the act of 1854, he is entitled to be paid his charges out of the proceeds; probably because in such cases the owner is unknown. The statute of 1862 *(ubi sup.)*became necessary, because no goods, upon which no duties were due, could remain stored in such warehouse, and a continued joint custody by the officer of the customs and the warehouse man became necessary to protect the government from fraud.

It is very evident, therefore, that the “ custody’’ spoken of in such statutes was confined' to its original sense of a guard or watch, for the interests of the government, and was not intended to embrace legal possession for all purposes, since the same term is used in the statute of 1862, in *pari materia*with that of 1854, when the United States would have no lien on or interest in the goocls. There can be no doubt that, without that statute, the moment the duties were paid, the custody of the United States officer would cease, and the warehouse keeper would remain in sole, undisturbed possession, having a lien for any storage unpaid. Imported goods on their passage to this country are in the actual or constructive legal possession of the owner, importer or consignee, and when placed in the joint custody of the keeper of a bonded warehouse and an United *418States officer of customs, they are so placed to secure the payment to the United States of duties, and to be taken care of in the mean time. In the ease of *Cartwright*v. *Wilmerding,*(24 *N.*Y. *Rep.*536,) it was held by the highest court of the state that consignees retained *“possession ”*of dutiable goods stored in a bonded warehouse, under the factors’ act of this state, (N. Y. *Sess. Laws,*1830, *p.*203; 3 *R. S. 5th ed.*176,) notwithstanding the *ueustody”*of the custom house officials, which was a mere restraint upon removing before the duties were paid. This accorded with the views of the same court in the prior ease of *Waldron*v. *Romaine,*(22 *N.*Y. *Rep.*370;) where, upon a sale of goods stored in a bonded warehouse, (the proper documents for exportation having been executed by the vendors,) and their delivery to a carrier selected by the vendees, (to be, as required by law, under the charge of a public officer until exported,) they were destroyed by fire before the proper authority permitting their surrender by such officer was received, and it was held that such charge and custody of the custom house officer was only to protect the lien of the government, and did not interfere with the transfer of the title, or the right of possession, when the duties were paid. *(See also Brissac v. Lawrence,*2 *Blatchf.*121.) It is very evident, therefore, that the warehouse keeper was the guardian of the interests of the plaintiffs, that is, of the goods subject to the lien for duties, and became liable for their safe custody like any other bailee, unless he was deprived of all control of the goods, and could not make provision for their safe keeping, without being thwarted or controlled by the United States officers (if they were so minded,)' so as to be a mere automaton owning the warehouse, (having a right to storage and other charges, but) no duties to perform. The fact, that the warehouse was required by the government to be examined by suitable officers, for. their own protection, and to conform to certain regulations, would not debar the owner of it from taking every additional precaution for the safety of the goods, or *419deprive him of his possession and control of the warehouse. If the government required the warehouse keeper to dispense with any precautions advisable for the safe keeping of the goods, and such omission was the cause of the loss, he might be excused upon the ground of inevitable accident, or that the exception from that cause formed part of the contract of the consignee of the goods with him. But there is no pretense of any such regulation or exclusion in this case. The defendants exercised sufficient uncontrolled dominion over the building, to enable them to use every precaution necessary for the safe keeping of goods deposited there. They were even bound, by the statutes before mentioned, to perform all labor on such goods at their own expense, and even indemnify the government against any expense, and were entitled to receive storage as compensation, commensurate with their care and trouble, for the exercise of due diligence. They are, therefore, liable for the want of such diligence.

In reference to the burden of proof of the absence of proper diligence, being negative it necessarily did not lie on the plaintiffs. The bailees, in such case, can much more easily give. affirmative proof of due diligence, than the bailors can of want of it. The mere non-production of the subject of bailment, is *prima facie*evidence of a deficiency in the care of it. *(Platt*v. *Hibbard,*7 *Cowen,*501. *Newstadt*v. *Adams,*5 *Duer,*46. *Willard*v. *Bridge,*4 *Barb.*367. *Bush*v. *Miller,*13 *id.*489. *Van Horn*v. *Kermit,*4 *E. D. Smith,*457. *Arent*v. *Squire,*1 *Daly,*347.) The plaintiffs are not driven to their special action on the case, but trover will lie. (2 *Salk.*655.) In some cases cited on the argument to establish the opposite doctrine, no such question arose. *(Knapp*v. *Curtis,*9 *Wend.*60. *Schmidt*v. *Blood, Id.*268. *Foote*v. *Storrs,*2 *Barb.*326.) In the case of *Wiggins*v. *Hathaway,*(6 *id.*632,) the defendant received the property, if at all, as a public officer. There was no proof that it. ever came into his hands, or of any demand and refusal. The same rule is adopted in other states. *(Alden*v. *Rearson,*
      *4205 *Gray,*348. *Beekman*v. *Sehouse, 5 Rawle,*189. *Clarke*v. *Spencer,*10 *Watts,*337. *Logan*v. *Matthews,*6 *Penn. Rep.*419. *Cox*v. *O’Reilly,*4 *Ind. Rep.*371.)

Some English cases cited in a note to *Platt*v. *Hibbard,*(7 *Cowen,*500,) appear to sanction . a different doctrine. Thus, in *Harris*v. *Packwood,*(3 *Taunt.*264,) where Lord Mansfield' seems to have held, that the ora¿s of proving due care did not lie with the defendant; who was sued, as a common carrier, for the loss of a parcel of over ¿620 value, when he had limited his liability by a notice, that he would not be answerable for any package above the value of ¿620, unless notified thereof and paid a premium of insurance above the price paid for its carriage, and the right so to limit his liability was acknowledged; the other justices (Heath, Lawrence' and Chambre) expressed no opinion on that point; but the last named (Chambre) placed his opinion upon the ground, that the defendant would not under his notice be liable at all. That doctrine was afterwards sustained by the Court of King’s Bench in the case of *Marsh*v. *Horne, (6 B. & C.*322,) which cited the former case *(Harris*v. *Packwood, ubi sup.)*as authority for its decision. A similar decision was made in *Clay*v. *Willan et al.*(1 *H. Bl.*298.) The editor of the second edition of *Jones on Bailments,*(Balmanno,) remarks, in a note thereon, *(page*106, *n.*40,) that in the last case *(Clay*v. *Willan,)*no proof was “ adduced of negligence or *conversion*of the parcel by - the *defendants*or their servants, and it would have been inconsistent with legal principles to have presumed ” a breach of trust. This corresponds with the language of Chief Justice Abbott, in the previous case, *(Marsh*v. *Horne, ubi sup.)*who says, “ a person may engage to place goods in a course of conveyance and delivery, .and yet not be answerable for their loss.” In other words, in such cases where- an actual loss is established, negligence of so gross a character must be proved as to warrant the inference of fraud or a conversion; and such seems to be the opinion of the anno-tator in *Platt*v. *Hibbard, (ubi sup.)*

*421The defendants in this case ought to be estopped from raising any such objection, having excluded positive testimony of negligence offered by the plaintiffs, by their objection. *(Manuf. and Traders’ Bank*v. *Hazard,*30 *N. Y. Rep.*226.) There was, also, some positive proof in this case, however slight, of negligence on the part of the defendants, when the plaintiff rested, such as the nature of the place where the goods were stored, the facility of entering it, and its want of proper fastenings. It was left to the jury to determine, on those and other facts in evidence, whether or not the goods in question “ were taken away in consequence of some acts of negligence, of which” they had “other evidence than the.loss of the goods.” They were also instructed that they should find for the defendants, if they had “ exercised ordinary care on their part, or the loss occurred without negligence by them;” and no exception was taken to those parts of the charge. The jury must, therefore, be held to have passed definitely upon the question of negligence. The proof introduced on both sides, after the motion for dismissal of the complaint, sustaining their verdict, cured any error in the refusal to grant that motion. *(Kent*v. *Harcourt,*33 *Barb.*495.)

On the trial, the counsel for the defendants took an exception to a refusal of the judge to charge that “ if the goods were stolen by burglars breaking into the store at night through the scuttle, after it was closed for the night, the defendants are not responsible.” This wholly disregards the condition of the building, and ignores any precautions to be taken to render it safe against a forcible entry, and any duty in guarding it, and was, therefore, properly rejected. Exception was also taken to a refusal of the court to charge that “ if the goods were stolen by burglars entering through the scuttle in the night, ordinary care did not require that they should ascertain the best known methods of securing the scuttle against burglars, and securing it in that way;” also, “ that the degree of care required to be exercised by a railroad company, in providing the most *422approved and best known inventions to prevent accidents to passengers, is greater than that required of the defendants in providing fastenings or inventions to prevent burglars from entering their store.” The court charged the jury that “ the warehouse keeper was liable, if he did not do what an ordinary storekeeper should do to take care of goods in his charge. * * In the first place, when goods are taken into a warehouse,” it *“*must be properly built, so as to be secure against attacks by burglars, * * against all the attacks and dangers which commonly present themselves to a prudent man. You are not bound to set your wits to work in such case to see what further protection might have been used in regard to it, * * You are not to occupy .your time in endeavoring to find out in what form, the highest exertion of the most acute human intellect and experience would enable a man to devise means to protect goods in a warehouse against dangers. You are only to determine what a man would do, in the exercise of ordinary prudence, to protect his property.” Although considerable evidence was given on the trial as to the nature of the fastenings of the scuttle and other parts of the premises, not a particle was offered of any other special means, invention or device for securing such scuttle, as being an improvement on those actually employed; there was, therefore, nothing in the case to which the instructions asked for were applicable, and they would have been abstract propositions entirely outside of the case as made. A court is not bound, in instructing a jury, to negative every imaginable proposition that may be conceived to have some bearing on the case; but only those which the evidence warrants or .might naturally raise in the minds of the jury. The charge was also sufficient as to the general test of the degree of care to be exercised by the defendants. The request to charge that there was no evidence of *gross*neglect by the defendants or their servants was properly refused, as no such question was made in the case, and the court charged, in substance, that ordinary care was sufficient. No such *423instruction was given to the jury as that the same evidence was necessary to establish a burglary in this case as on a trial for burglary, but only, that it was *as much a matter of fact to he decided hy the*jury, as on such a trial. The exception on that score was, therefore, properly overruled.

The requests to charge the jury in reference to the secuity of the building in question, compared with those of other stores in New York, Brooklyn and. New Jersey, in the vicinity, had no aliment in the evidence. They contained mere abstract propositions outside the ease, and were, therefore, properly refused. Indeed, the only attempt to introduce any evidence upon that point was defeated, in consequence of the generality and leading nature of the question proposed.

The interest on the value of the goods, (if allowed by the jury,) was properly allowed by way of damages, *(Dana*v. Fiedler, 12 *N. Y. Rep.*51; *Andrews*v. *Durant,*18 *id.*502; *Willard*v. *Bridge,*4 *Barb.*368; *Sherman*v. *Wells,*28 *id.*403;) it being an action for a breach of duty. No instruction was given to the jury on that point. All the exceptions to the admission or rejection of evidence were properly overruled.

The judgment should be affirmed, with costs.