Hoffman v. Carow.

against Hoffman & Co. auctioneers in the city of Baltimore, in the State of Maryland, for a quantity of merchandize stolen from the plaintiff in the city of New-York, and forwarded by the thief to the defendants to be sold at auction. The thief was indicted and convicted of the felony in May 1833, previous to which time the goods had been sold and the proceeds paid over by the defendants to the thief, without notice of the felony. The suit was commenced in October, 1834, against the defendants, who moved for a nonsuit on the grounds, that the proceeds of the goods having been paid over to the thief previous to his arrest, and before the defendants had notice of the robbery, the plaintiff was not entitled to recover; and that at all events under the circumstances of the case, the plaintiff was bound to prove a demand and refusal. The judge presiding at the trial refused a nonsuit, and charged the jury to find for the plaintiff. The defendants excepted. The jury found a verdict for the plaintiff, upon which judgment having been entered the defenants removed the record into the supreme court, where the judgment of the court below was affirmed. See the opinion delivered by the chief justice, 20 Wendell, 22. A writ of error was thereupon sued out removing the record into this court.

H. R. Winthrop & D. B. Ogden, for the plaintiffs in error, insisted that though it was true as a general rule that the owner of personal property could not be divested of his right to it without his own act or assent, and that a vendor could not convey a better title than he himself possessed, still that to this rule there were many exceptions. Possession is evidence of right as to personal property, and although not always conclusive, yet when it is in a foreign port, (and as to all commercial purposes Baltimore is as much a foreign port as is Canton, in respect to the owner of property residing in New-York,) the interests of commerce require that possession be considered conclusive evidence of property, and that all persons acting in good faith upon the strength of such evidence be protected. In England, a purchaser in market overt is shielded against the

Hoffman v. Carrow.

owner if the purchase be made in good faith and there be nothing unusual or irregular in the sale. This law arose in England, from the necessities of trade, and although our courts have not adopted it in the cases which heretofore have come before them, it is entitled to consideration, as the present is the first case which has arisen in this state in which it has been sought to be applied to the sale of stolen property. Indeed, it is submitted that the necessities of trade are so urgent, that unless possession, unaccompanied by any circumstance to excite suspicion, be deemed sufficient evidence of title to protect all persons dealing in respect to such property, commerce cannot be carried on with safety. Consignees and purchasers, notwithstanding the utmost care, will be exposed to ruin, for no vigilance. can protect them, unless, indeed, their transactions be limited to individuals to them personally known, or specially recommended, which would be imposing a restraint upon trade utterly intolerable. The rule is not universal that a vendor cannot convey a better title than he himself possesses, for in Parker v. Patrick, 5 T. R. 175, a pawnee was held entitled to recover goods even against the owner, where they had been fraudulently obtained from the owner and passed to the plaintiff for a valuable consideration. So in our supreme court it was held that though one obtain goods by a fraudulent purchase, void as to himself, yet if he afterwards sells them to a bona fide purchaser, without notice of the fraud, the property passes to the latter. Mowry v. Walsh, 8 Cowen, 238. Where is the distinction in principle, whether the owner be deprived of his property by fraud or by felony, as it respects the liability of a bona fide purchaser. In either case it is the want of care of the owner, that has enabled the unlawful possessor to impose upon an innocent purchaser, and of the two, the owner and not the purchaser should be the sufferer. Again: has not the English law of market overt been virtually recognized by our statute, 2 R. S. 625, § 33, 2d ed. directing restitution to be made to the owner after conviction had for the stealing, in anaolgy to the statute 21. Hen. VIII? In England, it is held under this statute, that the owner of goods

ces.

Hoffman v. Carow.

stolen, prosecuting the felon to conviction, cannot recover the value of them in trover, from the person who purchased them in market overt and sold them again before conviction. Harwood v. Smith, 2 T. R. 750. In this case the auctioneers sold the goods and paid over the proceeds to the thief before conviction. At all events, the defendants below were liable only for the goods, had they remained in their possession and on demand there had been a refusal to deliver them up. In Harwood v. Smith, it was said by Lord Kenyon, "if in this case the goods had remained in the defendant's possession at the time of the attainder, that would have altered the case," but having parted with them, he held the action did not lie. Thus clearly intimating that when the owner's right was restored, he would only be entitled to recover in case the purchaser remained in possession. Upon every principle of justice this should be so, and even then there would be great hardship in case of advanWhen the goods are no longer in the possession of the party receiving them, so that he cannot make restitution of the goods, and where he has been a mere conduit for their transmission from the hands of one to another; where in fact he has not converted them to his own use, but has been the innocent agent of an artful felon who alone has converted them to his use, he ought not to be held answerable for their value. So the law was held in Greenway and another v, Fisher and others, 1 Car. & Payne, 190, where it appeared that one of the defendants was a packer, who merely shipped goods which had been pledged by factors for their own debt. It was insisted in his behalf, inasmuch as he only acted in the regular discharge of his duty, the work being done according to directions, that no wrong in the transaction between other parties would affect him; that if it were not so every porter and every carrier would be liable as well as a packer. Abbott, Ch. J. said: "On the part of Woodward, reliance is placed, and I think properly, on the circumstance of his acting in the ordinary course of his business, and I am of opinion that the course of trade in this instance furnishes an exception to the general rule. The distinction between this case and that of a servant is,

1

Hoffman v. Carow.

that here there is a public employment; and as to a carrier, if while he has the goods, there be a demand and refusal, trover will lie but while he is a mere conduit pipe in the ordinary couse of trade, I think he is not liable." This principle had been previously acknowledged by the supreme court of this state, in Thorp v. Burling and others, 11 Johns. R. 285, in which it was said that a cartman would not have been held liable to an action of trover for removing goods, had there not been circumstances sufficient to put him on his guard as to the legality of the taking. The case of Cooper v. Chitty, 1 Burr. 20, cited on the other side, where the sheriffs were held liable in trover for selling the goods of a bankrupt, the judgment was placed expressly upon the ground that the defendants knew of the bankruptcy previously to the sale. Finally, for aught that appears, the circumstances of this case, were not

auctioneers under the

liable to the owner of the goods by the laws of Maryland, the place where the goods were at the time of the sale.

I. Anthon, for the defendant in error, submitted the following points and authorities:

1. The goods in question having been stolen, and delivered by the felon to the plaintiffs in error to sell for him, such delivery conferred no authority on them to make sale of the goods, and such sale was a conversion. Pell v. Humphrey, 2 Adolph. & Ellis, 500. Stephens v. Elwell, 4 Maule & Selw. 260. Cooper v. Chitty, 1 Burr. 20. Smith's Leading Cases, 220. Potter v. Starkie, cited 4 Maule & Selw. 260. Everett v. Coffin, 6 Wendell, 609. Williams v. Merle, 11 id. 80. 2 Kent's Com. 320, 323. Farrington

v. Payne, 13 Johns. R. 431.

2. The payment of the proceeds of such unauthorized sale to the felon, did not discharge the plaintiffs in error from their responsibility for such conversion, to the rightful owner. Potter v. Starkie, cited 4 Maule & Selw. 268. Isaac v. Clark, 1 Buls. 312.

3. The true owner has a right to reclaim his property and to hold any one responsible who has assumed the right

to dispose of it.

Hoffman v. Carow.

Williams v. Merle, 11 Wendell, 80. 2

Kent's Com. 320, 323. Isaac v. Clark, 1 Buls. 312. 4. The fact that the plaintiffs in error were auctioneers, does not vary their responsibility to the rightful owner of the stolen goods sold by them. Such a doctrine would make

every auction room a market overt.

After advisement, the following opinions were delivered :

By the CHANCELLOR. The simple question presented for our decision in this case is, whether the purchaser of stolen goods, who afterwards sells them as his own to a bona fide purchaser, is liable to the owner of the goods, in an action of trover for such conversion thereof to his own use? One of the members of this court, upon the argument, supposed the bare statement of such a case was sufficient to enable the court to decide it without further argument and I thought so too, until one of the learned and very able counsel for the plaintiffs in error assured us he was sincere it believing the action could not be sustained, and referred to a case from the English Term Reports, which was apparently a decision in favor of his clients. To understand that case, therefore, and to distinguish it from the present, I have found it necessary to bestow a little more time upon the examination of this subject than I should have otherwise deemed it my duty to give to it.

It is known to the professional members of the court, that in the market towns of England there are periodical fairs, where property is bought and sold, called market days; and that by the custom of the city of London, every day except Sunday, is a market day, and every trademan's shop is a market overt for those things in which he usually deals at that place; and that by the common law, a sale in a market overt actually changes the title to the property in favor of a bona-fide purchaser thereof, even though it has been stolen from the rightful owner. 5 Coke's R. 83, a. The only remedy of the owner of stolen property to recover it again, under such circumstances, at the common law, was to pursue his appeal against the felon to conviction, and