rowes the executor. Bolton v. Brewster. The plaintiff, however, insists, and the jury have found as a fact in the case, that Theodore B. Talmadge was at and for five months previous to the time of his death, an inhabitant of the city of Hudson, and therefore could not have been at that time an inhabitant of the city of New York. Should we conclude-as I think we safely might that upon the authority of Conklin v. Edgerton, (21 Wend. 430,) and Newton v. Bronson, (3 Kernan, 587,) Burrowes had authority to convey the land as the donee of a power in trust, and not as executor under the will, and that letters testamentary were not indispensable to the due execution of the power, we should still encounter the question upon which the plaintiff relies, to wit, the authority and jurisdiction of the surrogate of the city of New York to entertain the proceedings to prove the will. It is a necessary link in the defendant's chain of title upon this branch of the defense, and there is no proof of its execution and publication but that contained in the record and proceedings had before that officer. "The surrogate of each county shall have sole and exclusive power within the county for which he may be appointed, to take the proof of last wills and testaments of all deceased persons in the following cases: 1st. When the testator at or immediately previous to his death was an inhabitant of the county of such surrogate, in whatever place such death may have happened." (2 R. S. 60, § 23.) The surrogate's jurisdiction is exclusive, and the testator must have been an inhabitant of the county where the will is proved, at or immediately previous to his death. In the record and proceedings before the surrogate of the city of New York, it is distinctly alleged in the petition, which is sworn to, that Theodore B. Talmadge, at or immediately previous to his death, was an inhabitant of the city of New York. This jurisdictional fact is one which was open to litigation and which the surrogate might try and determine, and doubtless did determine, in these proceedings. It now becomes a grave question whether the proceedings can be attacked and subverted collaterally, for the purpose of Bolton v. Brewster. destroying the title to real property devised under the will. Domicil, residence, and inhabitancy, depend upon acts coupled with intention, which it is not always easy to ascertain, and the courts will be reluctant, I think, to recognize it as a rule of evidence that the residence or habitation of a testator is open to litigation and controversy long after his will has been proved and admitted to record, and valuable rights have been acquired under it. In the present case, it would be a useless task to endeavor to reach any definite conclusion upon this question, for an adjudication favorable to the views entertained by the plaintiff, would not overcome or evade another impediment which lies in the way of her recovery. The defendant claims title to the premises under the deed from Philip Burrowes, as also under the mortgage made by Peter Poillon to George Weeks. Theodore B. Talmadge took the deed from Peter Poillon subject to this mortgage, and upon which there was then due the sum of $4000, and interest from the time of the date of the deed to him. George Weeks assigned the mortgage to Nelson G. Carman, who afterwards assigned the same to Joseph K. Brick, the landlord of the defendant, Erastus A. Brewster. This mortgage has never been paid or satisfied, but is now a subsisting lien upon the lands claimed, and is held for the purpose of assuring and protecting the title. Whatever may be the effect of the deed executed by Philip Burrowes under the power contained in the will of Theodore B. Talmadge, the relation of the defendant to the premises is that of mortgagee in possession. After forfeiture and condition broken, the mortgagee, if he be in possession, is considered as having the legal estate, and an action of ejectment cannot be maintained against him. Whatever rights the plaintiff may have to these lands, it is quite clear she is not now entitled to recover the possession. (Phyfe v. Riley, 15 Wend. 248. Van Duyne v. Thayre, 14 id. 233.) Judgment should be entered for the defendant. [ORANGE GENERAL TERM, September 10, 1860. Lott, Emott and Brown, Justices.] 32 396 82h 336 ANDREWS US. SHATTUCK. To render a demand and refusal to deliver goods equivalent to direct proof of a conversion, it must appear that the party had the actual possession, at the time of the demand, and thus had power to comply with it; or that he had, before that time, parted with the goods fraudulently, with a view to evade the demand, or for his own benefit. If, at the time the demand is made, the goods are in the actual possession of another, and the person of whom the demand is made has not, and never had, any control over them, the fact that he claims the goods, and declares they are his own property, will not amount to a conversion. Nor will the fact of his giving an undertaking, to prevent the delivery of the property by the sheriff, to the plaintiff in an action brought to recover the possession, operate as an estoppel in pais. A PPEAL from an order made at a special term, granting a new trial. S. D. Lewis, for the plaintiff. D. T. Walden, for the defendant. By the Court, BROWN, J. The plaintiff recovered a verdict in this action for the sum of $5000, the value of the goods claimed in the complaint, and for $281.96 damages, at the Kings circuit before Mr. Justice LOTT, which was afterwards set aside at the special term, on motion of the defendant, and thereupon the plaintiff appealed. The action is brought to recover the possession of certain bundles of telegraph wire shipped from London, by the plaintiff, to one Sherman Webster, in New York, in October, 1856. The defendant claimed the property as owner, by purchase from Webster on credit. The title of the plaintiff to the property is by no means free from doubt; for portions of the evidence tends to show that Webster and Andrews, the plaintiff, were joint owners, while the invoice of the goods and the letters and correspondence of the plaintiff tended to establish a sale from him to Webster, the receiving of the notes Andrews v. Shattuck. of the latter in payment, and the giving of a receipt in full. The jury, however, by their verdict, found the title to the goods to be in the plaintiff, and that Webster had no authority to sell upon any other terms but cash. If there were no other impediment in the way of the plaintiff's right to retain the verdict, it would become a serious question how far it could be disturbed under the conflicting proof upon which it was rendered. The circumstance disclosed by the proof, however, suggests another consideration, fatal, I think, to the plaintiff's right to maintain the action. It is not claimed that the defendant took these goods tortiously. The most that the plaintiff asserts is that they were consigned to Sherman Webster to sell for cash, for the benefit of the plaintiff, and that Webster, in disregard of his instructions, made the sale to the defendant and received his paper in payment, payable on time. This theory implies that the goods came to the possession of the defendant by delivery from the plaintiff's agent who had authority to sell and deliver. This state of things imposed upon the plaintiff the burden of proving a conversion by the defendant. This he attempted to do; for he proved that he demanded the goods from the defendant before the commencement of the action, and the defendant failed to deliver them. To render a demand and refusal equivalent to direct proof of a conversion, it must appear that the defendant had the actual possession at the time of the demand, and thus had power to comply with it; or that he had before that time parted with the goods fraudulently with a view to evade the demand, or for his own benefit. It is an undisputed fact in the case that the goods were seized by the collector, under the revenue laws of the United States, as they entered the port of New York, under a claim that they were forfeited in consequence of a fraudulent undervaluation in the invoice. That an action for their condemnation was immediately commenced in the United States district court. That the goods were taken under the process of the court, by its proper offi Willis v. Long Island Rail Road Co. cer, and retained in his custody until the termination of the litigation, which was some time after the commencement of this action. The defendant, therefore, upon this state of facts, never had the possession of the goods, and could not be guilty of a conversion, either actual or constructive. Never having had them under his control, he could not deliver them upon demand of the plaintiff, supposing him to have been the true owner; nor could he part with them to another person, either fraudulently or otherwise. The proof that he claimed the goods, and declared they were his own property, was of no avail, in the face of the fact that they were then, and had been from the time they came to this country, in the actual possession of another. And so also with regard to the giving of the undertaking by the defendant to prevent the delivery of the property by the sheriff to the plaintiff, when the action was commenced. It cannot operate as an estoppel in pais; for it lacks some of the essential qualities of such an act, and as proof of the conversion it is overcome by the proof of the actual possession by the United States officer. The order appealed from should be affirmed, with costs. [ORANGE GENERAL TERM, September 10, 1860. Lott, Emott and Brown, Justices.] WILLIS VS. THE LONG ISLAND RAIL ROAD COMPANY. The extent and the measure of the duties and the responsibilities of a carrier of passengers and the passenger are quite different. The carrier is bound to the exercise of all possible skill, foresight and care. The passenger is bound to conduct himself with due and ordinary prudence, such as a careful man would use under the circumstances. He is not required to foresee unexpected dangers, nor to speculate upon risks, but he is obliged not to expose himself to danger which is known or may be looked for, in a manner inconsistent with ordinary caution. Per EмOTT, J. It is not conclusive evidence that a person is negligent of his safety in assuming |