Page:Harvard Law Review Volume 9.djvu/162

134 134 HARVARD LAW REVIEW, the company the necessity of making some explanation for the absence of the bonds, and that the question as to whether or not the company was guilty of negligence was properly left to the jury. The other case is that of Roberts v. The Stuyvesant Safe-Deposit Company (123 N. Y. 57), previously referred to. There property was taken from the safe of a depositor in the vault of the company by officers acting under a search warrant. The description in the warrant of the property sought for did not sufficiently correspond with the property found in the safe to establish its identity as the property in question. Nevertheless, the officers removed it. It was held that the taking of the property under such circumstances was a trespass, which should have been prevented, if possible, by the officers of the company ; or they should have used legal means to regain possession of it. The court stated the rule establishing the duty of the company as follows : — "When property in the custody of a bailee for hire is demanded by third persons, under color of process, it becomes his duty to ascertain whether the process is such as requires him to surrender the property, and if it is not, then it is his right and duty to refuse, and to offer such resistance to the taking, and adopt such measures for reclaiming it, if taken, as a prudent and intelligent man would, if it had been demanded and taken under a claim of right to the property by another without legal process. The defendant did not discharge the duty that it owed to the bailor and owner of the property by merely making a formal protest against entering the vaults where the property was." It is appropriate to advert here to the rule of evidence applied in the case of the Safe-Deposit Company of Pittsburgh v. Pollock, to the effect that, in cases against safe-deposit companies for dam- ages on account of negligence, the burden of proof is on the plaintiff, unless there is prima facie evidence of negligence on the part of the defendant, calling for explanation from him. This follows the general rule, as stated in Edwards on Bailments, Art. 399, thus : "■ It rests with the party alleging a fact by way of maintaining or defending an action to establish it by evidence." What constitutes prima facie evidence is thus given in the same paragraph : " The bailor makes a prima facie case when he shows such loss or damage to the chattel as ordinarily does not happen when the care which the law requires in the particular kind of bail-