Teall v. Felton , 3 Barb. 512 ( 1848 )

By the Court,

Gridley, J.

We have no doubt that this action was properly brought in a state court. If a letter enclosing a thousand dollars in bpnk notes had been sent by mail to the post office in Syracuse, directed to the plaintiff, and had been withheld by the postmaster, unlawfully, after a tender of the postage chargeable on the package, it is difficult to see why an action would not lie against the postmaster in a state court for a conversion of the money. The injury is one for which the common law gives redress ; and the party injured may seek his redress by the usual common law remedy, in any appropriate common law tribunal. The case is not one where the remedy is given by an act of congress, and is to be sought in the courts of the United States. So, too, we are of the opinion, that the conversion of a newspaper belonging to a citizen may be the foundation of an action of trover, in the appropriate state tribunal, notwithstanding the party guilty of the conversion should be a postmaster. To justify such an action, however, the conversion should be clearly proved. The withholding of the paper should be shown to be without color of right, and the plaintiff should establish his own title to it by unquestionable evidence.

This view of the case brings us to the consideration of the question, whether there is any error apparent on the record, for which we should be warranted in reversing the judgment in this cause. This will depend on the facts proved upon the trial of the cause; or rather upon what we are to adjudge to be the facts of the case as settled by the verdict of the jury.

By the act of 1845, [Acts of 2d Session of 28th Congress, page 24, section 1,) the defendant was bound to charge with letter postage, not only letters in manuscript, but also “ a paper of any kind by or upon which information shall be asked for or com/nmnicated in writing, or by marks and signs, SpcP Now it is quite clear that an initial may be so placed upon a paper as to convey information, and precisely such information as was intended to be prohibited by the act. For instance; a person whose initial is known to his correspondent, and who may be travelling to a certain place in Michigan, may thus communicate, to a distant friend, the fact of his arrival. So a distant correspondent may, by a paper, which in itself contains nothing of importance, on which is inscribed his initial, communicate the fact of his friendly remembrance and recognition, and of his own good health. There are cases, therefore, in which a postmaster may only be doing his duty under the act, in charging such a paper with letter postage. And chapter 58, section 426, of the regulations for the government of the post office department, shows that it is immaterial whether the writing or sign or mark is on the paper or on the wrapper. We have no doubt that the above is a sound though a severe interpretation of the act, when we consider the object for which it was passed, and the change in the phraseology from'that employed in the act of 1825. But it is equally clear that an alphabetical character (which would be an initial of some word or name) may often be found inscribed on the wrapper of a newspaper, made carelessly, and with no definite intent, or which may have been upon the paper used as a wrapper before it was employed for that purpose. In such a case, the initial would be no evidence at all that it was a mark or sign, by which information was asked or communicated. Now we have no evidence in this return of the justice, that this single letter was a capital letter, whether it appeared to be written by the same hand, or with the same ink and pen with the address on the wrapper or not, nor as tó what position it occupied on the wrapper. Nor have we any evidence whatever to show, by circumstances or otherwise, whether it was probably written by the person who sent the paper, to communicate information, or not. For aught we know, it was written with a different ink, and pen, and hand, and was placed in such a position upon the wrapper as to indicate that it was there by accident, and not by intent. It is true that the evidence does not show that it was so, nor does it show the contrary; and that is precisely the case where the law declares that every intendment and presumption is to be made in favor of, and to uphold the verdict of a jury. If the facts were such as to indicate an intentional making of the letter by the same hand that wrote the address, that should have appeared on the return of the justice. (See 18 Wend. 141; 3 John. 435, 439; 2 Id. 378.) The jury s'aw the witnesses, and may have had opportunities to arrive at the truth which we have not. Hence the difficulty of setting aside the verdict when there is room for controversy about the facts.

We must hold, therefore, inasmuch as it may have been an accidental mark, that the jury have found that it was so. This we feel bound to adjudge, while we can readily imagine that by means of a careless mode of trying the cause, or of an imperfect return, injustice may have been done to the defendant below.

Judgment of common pleas affirmed.