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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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was quite clear, had he only, anterior to the commencement of his
action, tendered to the defendant the money due for the keeping
of the horse in the one case, or the sum due for the freight of the
goods in the other. Besides, it is impossible not to see that in
many instances, which occur almost daily, I would say, that if the
right of restitution must be demanded by the owner of the goods,
in such case, of him who did the injury, or, in other words, of
him who wrongfully took them, his remedy to follow the wrong-
doer may cost him more than the value of the goods ; or the
wrongdoer, when overtaken, may be insolvent and unable to make
compensation. The owner, therefore, in every case, rather than
encounter such a risk, where he has been deprived of the possession
of his goods wrongfully, by one who has delivered them to a bailee,
had better adopt the remedy sanctioned by the court in Shelburg
v. Scotsford, Yelv. 23. There the owner, b'y force and arms, and
against the will of the bailee, retook his horse, which the bailor,
*4941 ^ithout' an j consent or authority from the owner. *had
' lent to the bailee to ride to Y., upon his promise to return
the horse on a certain day agreed on between them ; and in an
action brought by the bailor against the bailee, for breach of his
promise, in which the latter pleaded the true property of the
horse to be in J. S., and that he vi el armis et contra voluntatem,
had retaken the horse ; the matter thus alleged in the defendant's
plea was held to be a good defence ; for in law it discharged
the promise of the defendant by reason of the property of the


[King o. Richards.]

horse being in J. S. This case establishes the principle cleaily
that the bailee can no more resist the right of the true owner to
take or recover the possession of the goods than his bailor could :
that the right of property is ever to be regarded, and may be inquired
into in an action brought by the bailor against his bailee as well
as in other cases. And hence it is that in every case almost,
where it is clear that the plaintiff is not only vested with the right
of property in the goods, but likewise with the right to the posses-
sion of them, the general, if not the universal rule, seems to be,
when this is so, and there has been a conversion of the goods by
the defendant, that the plaintiff mav maintain trover for them.
Mather v. Trinity Church, 3 S. & R. 512, 513 ; Gordon . Harper,
7 Term Rep. 9. So replevin will lie in this state by the owner of
goods against any one in the possession of them, who detains them
without the sanction either of the owner, or the law authorizing
him to do so. Weaver v. Lawrence, 1 Dall. 157 ; Shearick v. Hu-
ber, 6 Binn. 3 ; Woods v. Nixon, Addis. 134 ; Stoughton v. Rapalo,
3 S. & R. 562 ; Stiles v. Griffith, 3 Yeates 82. But if the doc-
trine as laid down in Rolle's Abridgement, and Fitzherbert, N. B.
were to prevail, neither replevin nor trover could be maintained
by the owner of the goods, who was not the bailor, though he
never had parted with his right of property or possession in them,
against a bailee, because the latter could defeat the action at any
time during its pendency by delivering the goods to the bailor, who
might run away with them, so as to deprive the owner of all rem-
edy for his loss. But it is said that it would be breach of trust,
or an act of treachery on the part of the bailee, to deliver the
goods even on demand to the true owner, notwithstanding he has
received them from a wrongdoer, because he promised to restore
the goods to such wrongdoer. If the bailee in such case recover
the goods from the bailor innocently, under the impression made
by the bailor, that he is the owner thereof, or has the right to dis-
pose of them in the manner he is doing, and therefore promises to
return the goods to the bailor, it is very obvious that such a pro-
mise ought not to be regarded as binding, because obtained through
a false impression, made wilfully by the bailor ; and truth which
lies at the foundation of justice, as well as all moral excellence,
would seem to require, in every such case, that the goods should be
delivered up to the true owner, especially if he demand the same,
instead of the wrongful bailor. But if the bailee knew at r*AOz
*the time he received the goods and made the promise to "
redeliver them to the bailor, with a view to favor the bailor, that
the latter had come wrongfully by them, either by having taken
them tortiously or feloniously from the owner, then the bailee
thereby became a participant in the fraud or felony, and it would
be abhorrent to every principle of justice that he should be pro-

425 SUPREME COURT [March Term,

[King v. Richards.]

tected under such circumstances against the demand or claim of the
owner. This promise, however, of the bailee is said to be binding
on him only, and is not such as his personal representatives are
bound to regard ; and the reason assigned for this is because the
goods have come to their possession by operation of law. Thia
doctrine, if it were to be allowed, would certainly be singularly
anomalous, and unlike, in its effect, to any other promise recog-
nised by the law as binding.

In order to test it, let us suppose, for instance, that the vendor
of goods, after having received the stipulated price for them of the
vendee, promised to deliver them, but died before this could be
effected ; will it be pretended that his executor or administrator
would not be bound, if the goods came to his possession, to deliver
them to the vendee ? Suppose further, that it is discovered by the
executor or administrator, while he has the possession of the goods,
that the vendor was not the owner of them, and that he had no
right whatever to sell them; would it not be his duty to deliver
them to the rightful owner, if demanded by him, and not to the
vendee ? No one can doubt but it would ; and yet I apprehend it
would puzzle a casuist himself to distinguish this latter case from
that of the bailee. In either case the owner is entitled upon
demand, to have his goods restored to him by whomsoever he may
be that has possession of them ; for nemo debit rem suam sine facto
aut defectu suo amittere. It is also clear that the wrongful bailor,
having no right of either property or possession in the goods, can
transmit nothing of the kind by his delivery of the goods to his
bailee. It is true there is a position laid down in Bro. tit. Tres-
pass, pi. 256, 329, 359, which would seem to militate against this.
There it is said, if A. takes the goods of B. illegally, and C. after-
wards takes them illegally from A., B. cannot maintain an action
of trover against C. ; for that, by the first taking, notwithstanding
it was tortious, the property of B. was divested. But it is said in
1 Sid. 431, that A. does not in such case acquire any property in
the goods by the first taking, and, consequently, that B. may
maintain trover for them against C. This latter proposition is cer-
tainly much more agreeable to reason than the former, and ought,
therefore, to be regarded as the law on the subject agreeably to
the maxims, Lex est dictamen rationis ; or lex semper intendit
quod convenit rationi. The counsel for the defendants in error
relied also upon a case mentioned by Mr. Erskme in his argument
for the plaintiff in Latouche v. Fowle, 3 Esp. Rep. 114, which he
said was tried before Mr. Justice Gould. The defendant was a
*49fTI carr ' er > w h na d goods delivered to *him to be carried from
' Maidstone to London. While the goods lay at his ware-
house, a person came there who said the goods were his, and
claimed them from the carrier : the carrier said he could not de-


[King v. Richards.]

liver them ; but that if he was indemnified, he would keep them and
not deliver them according to order. An indemnity was given, and
the goods, not being delivered according to order, the party by whom
the goods were delivered to the carrier, brought an action against the
carrier. And Mr. Gould, Justice, on the trial of it, would not
permit the carrier to set up any question of property out of the
plaintiff; and held, that he having received them from the plain-
tiff, was precluded from questioning his title, or showing a property
in any other person. Upon this statement of the case the correct-
ness of Judge Gould's decision may well be questioned ; and it is
probable that his decision was grounded upon the appearance of
collusion between the carrier and the claimant of the goods as owner.
And, indeed, it would appear as if Lord Kenyon did not regard it
in the same aspect as stated by Mr. Erskine, or, if he did, that he
has impugned it by his decision of the case in which it was cited.
In the case before Lord Kenyon, the defendant was a warehouse-
man, to whom the goods then in question had been sent to look at,
for the purpose of purchasing them ; but having reason to believe
that the goods were obtained fraudulently by the person who sent
them, he retained them for the right owner. On the trial of the
cause, Lord Kenyon permitted the defendant to prove, if he could,
that the property of the goods was in other persons, and not in the
party who sent them to the defendant ; and said, if this were clearly
proved, that he should hold it to be a decisive answer to the action.
There are also other decisions and judicial dicta repudiating the
ancient dicta or cases, in Rolle and Fitzherbert, and the decision
of Judge Gould on this subject. In Wilson v. Anderton, 1 Barn.
& Adolph. 450 ; s. c. 20 E. C. L. R. 426, where the captain of a
ship, who had taken goods on freight, and claimed to have a lien
upon them, delivered them to a bailee, the real owner demanded
them of the latter, who refused to deliver them without the direc-
tions of the bailor ; and it was held, upon its being shown that the
bailor had no lien upon the goods, that the refusal by the bailee to
deliver was sufficient evidence of the conversion. On the trial of
this last case the nisi prius decision of Justice Gould was cited for
the defendant, and it was contended in his behalf that he was only
answerable to his bailor ; in reference to which Lord Tenterden,
C. J., observed, " If the law be as is contended, there has rarely
been a sitting at Guildhall where injustice has not been done ; for
the title to goods has been repeatedly tried in actions against ware-
housemen. A bailee can never be in a better situation than the
bailor. If the bailor has no title, the bailee can have none ; for the
bailor can give no better than he has. The right to the property
may, therefore, be tried in the action against the bailee; and a refusal
like that stated in this case has *always been considered
evidence of the conversion." So Littledale Justice, in the

427 SUPREME COURT [March Term,

[King v. Richards.]

same case, in answer to the argument that the relation between
bailor and ballet- was near like that which existed between
landlord and tenant, which precluded the tenant from contro-
verting the title of the landlord, observed, that although a lessee
cannot dispute the title of his lessor at the time of the lease, yet
he may show that the lessor's title has been put an end to ; and,
therefore, in an action of covenant by the lessor, a plea of eviction
by title paramount, or that which is equivalent to it, is a good plea ;
and a threat to distrain or bring an ejectment by a person having a
<yood title, would be equivalent to an actual eviction ; so that if the
bailor brought an action against the defendant as bailee, the latter
might, on the same principle, show that the plaintiff recovered the
value of the goods ; or that on being threatened with an action by
a person who had a good title to the goods, he had delivered them
to him. The Court of Common Pleas, also, previously to this, were
clearly of the opinion in Ogle v. Atkinson, 5 Taunt. 759, where
the question was agitated and discussed, whether a warehouseman,
receiving goods from a consignee, who had the actual possession of
them, to be kept for his use, might, notwithstanding refuse to re-
deliver them ; if they were the property of another, that he might.
And Mr. Justice Heath, in noticing this point, remarked in reply
to its having been likened to the case of a lessor in ejectment,
brought by him against his lessee, to recover the possession of the
leased premises, after the lease had been determined, where the
lessee is not permitted to set up a right of property, as a defence,
in a third person, that this principle was peculiar to the action of
ejectment, that he who is intrusted with the possession of land,
must deliver it back to his lessor ; but the rule extends to no other
action. It is, however, true that some of the members of the
court, in Miles v. Cottle, 6 Bing. 743 ; s. c. 19 E. C. L. R. 219,
seems to think that it is not competent to a carrier to dispute the
title of a party who delivers goods to him ; but the question did not
arise in that case, and no reason for their thinking so is given.
And it may be correct enough to hold, where the real owner of the
property does not appear and assert his right to it, that the carrier
or bailee shall not be permitted, of his own mere motion, to set up,
as a defence against his bailor, such right for him. But it would
be repugnant to every principle of honesty to say, that after the
right owner has demanded the goods of the bailee, the latter shall
not be permitted, in an action brought against him by the bailor
for the goods, to defend against his claim, by showing, clearly and
conclusively that the plaintiff acquired the possession of the goods
either fraudulently, tortiously, or feloniously, without having ob-
tained any right thereto. It is perfectly clear, if it were to be held
that he could not, it might, in effect, be securing to the bailor the
enjoyment of the fruits of his iniquity, at the expense of an inno-


[King v. Richards.]

cent bailee, who had made himself *liable for the goods to
the right owner thereof, by his having been induced to re-
ceive them from the bailor, under a false assumption by the latter,
that he was the owner of them, and in not having delivered them
to the owner afterwards, on his demand, through some doubt as to
what he ought to do in the case, or misapprehension of what his
duty required of him.

The case of Ilawes v. Watson, Ryan & Moody 6 ; s. c. 21 E. C.
L. R. 367, which has also been cited for the defendants in error,
determines nothing more than that the vendor of goods cannot
exercise the right of stoppage in transitu, notwithstanding the
vendee has become insolvent, where it would prejudice third per-
sons ; such as have, according to the course and usage of trade,
upon the faith of the order of the vendor, directing the goods sold
to be delivered to the vendee, bought them of the vendee for a full
price actually paid. The question whether the bailee may dispute
the right of his fraudulent or tortious bailor to the goods, did not
arise in the case, nor does it appear to have been passed on.
Neither was this question presented or decided in Stonard v. Dun-
ken, 2 Camp. 344, another case cited for the defendants in error.
These cases, therefore, are inapplicable to the one before us, as the
errors assigned in it present no question of any kind between
vendor and vendee, so that, whether the vendor under any circum-
stance may rescind the contract for the sale, and countermand the
delivery of the goods to the vendee, after he has parted with the
actual possession of them, and given an order that they be for-
warded to the vendee, is entirely out of the case. The only ques-
tion in it is, was it competent for the plaintiffs in error, as bailees
and defendants in the action on the trial, to show that the bailors
of the goods to them, from whom the defendants in error claim by
virtue of an assignment, to recover the value of the goods, obtained
possession of them fraudulently from the right owner, without a
shadow of right thereto on their part. Under the view that has
been taken above of this question, and the reasons there set forth,
we have been led to the conclusion, that the plaintiffs in error ought
to have been permitted, if they could, to have made proof to that
effect. Then, seeing the evidence rejected by the court, would, if
received, have tended to prove it, we therefore think that the court
erred in not receiving it. The evidence, as we conceive, was all
important for the defendants in the court below; because, if it were
such as would have satisfied the jury that the assignors of the plain-
tiffs below had no right to the goods, but that they were the pro-
perty of John B. Lasala, from whom they had fraudulently gotten the
possession without his consent, it would have shown clearly that
they, had they been the plaintiffs, could not have recovered from
the defendants below after the goods had been claimed by Lasala,
and more especially after they had been delivered up to him upon

429 SUPREME COURT [March Term,

[King v. Richards.]

his claim. To determine otherwise would be to permit them to
*4.9Q1 ta ^ e advantage of and profit by *their own wrong ; which
' was practised first upon Lasala, the owner of the goods, in
obtaining possession of them from him by means of fraud ; and
afterwards upon the defendants below, in inducing them to take
the goods from New York to Philadelphia, as if they had been the
proper owners of them. If it be so, then, that the assignors of the
plaintiffs below had no right to the goods, it follows inevitably that
they could transfer none by their assignment to the plaintiffs below ;
for it is impossible in the nature of things, that a man can transfer
a right from himself which he has not. The plaintiffs below, there-
fore, can be in no better situation than their assignors would, had
they been the plaintiffs. I do not know that it is necessary to
speak of the instrument of writing signed and given by the defend-
ants below when they received the goods. It was called a bill of
lading in the argument; but it is not. perhaps, properly such. It
contains an acknowledgment of the receipt of the goods, and an
engagement to forward them from the city of New York to the city
of Philadelphia, and there deliver to the order of the bailors. It
cannot be said to contain any admission that the bailors were the
real owners of the goods ; so that the doctrine of estoppel, men-
tioned in the course of the argument, has no application to the case.
The judgment is reversed, and a venire de novo awarded.

Judgment reversed; and a venire de novo awarded.

Cited by counsel, 11 Casey 243.

Cited by the court, post, 443 ; 6 W. & S. 76. || On the point that mere pos-
session does not give a right to sell, &c., goods, (in reviewing the doctrine
that retention of possession of personalty by the vendor, is legally a fraud) :
Davis v. Bigler, 12 Smith 248.

In Kobinson v. Hodgson, 23 Id. 210, the principle that a bailee with notice
of want of title in his bailor, would redeliver to him at his (bailee's) peril, is

Under the general commercial law, the endorsee of a bill of lading takes
only the title of the endorser : Empire Co. v. Steele, 20 Id. 188. The act 24
Sept. 1866, 1, P. L. 1363, makes, inter alia, bills of lading "negotiable,"
but semble that does not invest them with all the qualities of bills of
exchange, &c. : Shaw . Railroad, 11 Otto 557. ||

*430] *[PHILADELPHIA, APRIL 22, 1841.]

Bowen against De Lattre.


In an action in the District Court, by the payee against the maker of a
promissory note, it was held, that an affidavit of defence in the same case
made by the defendant under the act of 1835, in which he admitted the
making of the note, might be read in evidence by the plaintiff, as an admis-
eion of the fact of making the note.


[Bowen . De Lattre.]

ERROR to the District Court for the City and County of Phil-

This was an action of assumpsit, brought hy Henry De
Lattre against John T. Bowen, upon two promissory notes
alleged to have been made by the defendant in favor of the

The plaintiff filed copies of the notes with the affidavit as
follows :

"New York, October 31, 1836.

Sixty days after date, I promise to pay to Henry De Lattre or
order, the sum of one hundred dollars, value received.
3100.00. J. T. BOWEN."

" New York, October 31st, 1836.

Sixty days after date, I promise to pay to Henry De Lattre, the
sum of ten dollars, value received.
$10.00. J. T. BOWEN."

" Henry De Lattre, the above-named plaintiff, being duly sworn,
declares and says, that sixty dollars, part and parcel of the above
mentioned notes, was lent by him to the above defendant at his
*special request, and was paid into his hands by a certain r=M o-i
Mr. Valentine, of the city of New York, on behalf of, "
and for the use of the plaintiff; and the residue of the said notes
is for the likenesses of certain horses painted in oil colors, and
sold to the defendant by the plaintiff at his special request ; and
that the whole of the said two notes, with interest according to the
law of New York, is justly and truly due to the plaintiff from the

And the defendant filed an affidavit of defence in the following
words :

" J. T. Bowen, the above-named defendant, being duly sworn,
says, that he has a defence against the plaintiffs claim in the above
action, which defence is as follows, to wit : that no portion of the
said plaintiff's demand in this action is, or can be for money loaned,
as stated in his affidavit filed in the above cause, as deponent never
borrowed any money of him, particularly the sum of sixty dollars
set forth in said affidavit : that the promissory notes sued on in this
action, copies of which are filed in this cause, were given by defend-
ant to plaintiff for painting the portraits of Post Boy, Dussorna,
and Veto, certain celebrated race horses, which portraits defendant,
who is a lithographic print dealer, intended to use in his business by
producing lithograpic copies therefrom for sale : that said defendant
received said portraits from plaintiff when finished, and gave sai<l
notes, upon the written guarantee of plaintiff that said portraits

431 SUPREME COURT [March Term,

[Bowen v. De Lattre.j

were good likenesses of said horses : that defendant proceeded to
lithograph two of said portraits, to wit, Dussorus and Veto, and
after incurring the expense of so doing, discovered that two of
said portraits, to wit. those of Post Boy and Dussorus, were in fact
caricatures, and that of Veto no likeness at all : that plaintiff had
gone to some place unknown to defendant, at the south, previ-
ously to defendant's making this discovery, so that he, the defend-
ant, could not return or tender said portraits to him, but he offered
to do so to the person who called as said plaintiff's agent, and pre-
sented the said notes for payment when due; that said portraits are
unsaleable, and of no value whatever to defendant, who has sus-
tained a considerable loss thereby, and the consideration of said
notes has totally failed."

The plaintiff then declared upon the notes with the common
counts for money lent, &c.

The defendant pleaded non assumpsit ; upon which the cause
came on for trial before Stroud, J., on the 6th of February
1840, when the plaintiff's counsel, not being able to prove the
handwriting of the defendants to the notes, offered the affidavits
of defence in evidence, as an admission that the notes were given
by him.

The defendant's counsel objected to the admission of the affidavit;
but the learned judge decided that the affidavit might be read. He
*4291 * sa i^ tnat it could not be admitted to prove the mere fact for
' which the plaintiff's counsel introduced it; but that the
whole matters contained in it must be submitted to the jury, who
would give to them the weight they deserved.

The affidavit was then read, and the copies of the notes as

Evidence was given on the part of the defendants : and the jury
found for the plaintiff. Whereupon the defendant took this writ of
error; and assigned for error the admission of the affidavit and
copies of notes.

Mr. Ingraham, for the plaintiff in error, cited Harrington v.
Macmorris, 5 Taunt. 228 ; 1 E. C. L. R. 88 ; 2 Esp. N. P 602.

Mr. Troubat and Mr. Desmond, contra, cited Jackson v. Har-
row, 11 Johns. 434 ; 21 Pick. 243 ; Clemson v. Davidson, 5 Binn.
392 ; Phillips on Evid. 89 ; Bauerman v. Radenius, 7 Term Rep.

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 48 of 75)