Hoffman v. Carow.

rules or principles has exceptions, which I have before adverted to. Every case attempted to be brought under it must depend upon its own peculiar state of facts as the same came out in proof, to ascertain whether it belongs to the rule, or attaches to one of the exceptions. That dictum, however, which is incidentally mentioned in the course of the opinion of the court, together with a similar one in 8 Cowen, 238, which was in a case of fraud, and not of felony, seem to have formed the basis of the subsequent decisions of that tribunal. And the next succeeding case is the first one that applies that principle in its broadest sense to the facts of the

case.

In Williams & Chapin v. Merle, 11 Wendell, 80, the facts were these: Nov. 1, 1829, the master of a tow-boat, by mistake, took 4 barrels of potashes from a warehouse in Albany, and discovering his mistake when in New-York, delivered them to the clerk of the agents of his principals, who took them to an inspector's office on the 3d of Nov. following, obtained a certificate of inspection, and on the 6th of the same month sold them to the defendant, a produce broker, who purchased them for a Mr. Patterson, at a fair price, and received the inspector's certificate. On the 10th of November, the defendant took the ashes from the inspector's office, and shipped them to the order of his principal. About the first of September, in the following year, the plaintiffs demanded the ashes of the defendant, who refused to account for them, saying he had purchased and paid for them a year preceding the demand. The circuit judge, Edwards, intimated his opinion, that if the defendant had acquired the property bona fide by purchase, in the regular course of his business as a produce broker, and had disposed of the same bona fide, pursuant to the instructions of his principal, before suit brought, the action would not lie. He, however, refused to nonsuit the plaintiffs, and the jury, under his direction, found a verdict for the plaintiffs for the value of the ashes, and interest. The case was brought to the supreme court for revision; and that court, in following up the general principles mentioned in the cases of Mowry v. Walsh, and of Everett v. Coffin and others,

Hoffman v. Carow.

decided that the defendant was liable, and that the owner of property cannot be divested of it but by his own consent, or by operation of law, and that the purchaser acquired no title. The circuit judge took such a view of the facts and of the legal principles which should be applied to them, as seems to commend itself to our common sense of justice; and such an one as the equity of the case would seem to requirewhich was to leave the plaintiffs to their remedy against those who actually converted and sold their property, and had appropriated the proceeds to their own use; but not allow them to sustain an action against an innocent party who was only the agent for the purpose of transmitting the property from the hands of those who had so converted it, to those of a third person. Not that there was any doubt about the general rule of law, as laid down by the court in reviewing the case; but because the defendant was in a business well known to the commercial community as an agent, a produce broker, transacting that business bona fide; and because the great and important interests of the community required that those men should not be rendered liable in damages for acts done by them without the intent of committing a violation of law. The reasonable presumption would be, that if such a doctrine should be sanctioned by the higher courts, and thus become the settled law of the land, these agencies would be broken up, to the great annoyance and expense, as well of the merchants as of the planters; thus affecting not only the commerce but the agriculture of the country; or at the least be the cause of creating very serious impediments in the way of the transaction of that business which has been for several years past peculiarly appropriated by that class of men; and which constitutes a very large amount of the whole business of the country. The only ground upon which a party should be held liable, is that he has the property or its value in his possessisn, or has with knowledge or under notice, illegally disposed of it; and not by reason of having been the mere conduit for its transmission from one to another, and that without notice or knowledge of any claim having been set up to the property by a third person. I

Hoffman v. Carow.

am inclined to think there is a slight mistake in the case as reported in relation to the doctrine held by the circuit judge; in which he is made to intimate that if the defendant had, in addition to the other circumstances by him stated, "disposed of the property bona fide, pursuant to the instructions of his principal before suit brought, the action would not lie;" and that he intended to have been understood as intimating, that if the defendant had in addition to those other circumstances, disposed of the property bona fide, pursuant to the instructions of his principal before notice, or demand made, the action would not lie. That would make the doctrine conform to that deducible from the English cases, and to what I believe to have been the law in this state before the case of Mowry and others v. Walsh, 8 Cowen, 238, which was decided in 1828, although I cannot see that the decision of that case, viewed in a proper light, militates against that rule.

This disposes of the adjudged cases cited on the argument of this cause-there are however two cases referred to by the learned chief justice in delivering the opinion of the supreme court, which should here be noticed. The first is that of Mowry and others v. Walsh, above mentioned. There goods were obtained from the plaintiffs by means of a forged recommendation, and a promise to pay whatever amount the plaintiffs might let him have-after thus obtaining the goods, the party obtaining the goods, took them to Lansingburgh, and sold them to the defendant for considerable less than the prices which had been charged him by the plaintiffs at the factory-the defendant's clerk however, testified that the price paid was a fair one. The plaintiffs afterwards demanded the goods, and the defendant refused to surrender them and an action of trover was brought. The circuit judge held that the goods were obtained fraudulently but not feloniously, and the defendant having bought them bona fide without notice of the fraud, the plaintiffs could not recover; and a verdict was rendered for the defendant. The case was brought before the supreme court, and that court supported the decision of the circuit judge, and held that it was a case of fraud, and not of felony or larceny

Hoffman v. Carow.

and that the finding of the jury and the testimony established the fact that the defendant purchased without notice of the fraud; that although as between the orignal parties to the contract, the sale was void in consequence of the fraud, yet if that original fraudulent purchaser afterwards sold the goods to a bona fide purchaser without notice of the fraud, the property passed, and the court would protect him in the possession thereof. Although this decides the whole case which was brought up for examination, the court also lay down the general principles of law as applicable to cases of stolen property-that if the goods were taken feloniously no title passed from the owners, and they might pursue and take their property wherever found; that such is the law in England unless the goods are sold fairly in market overt, and that having no such market here, the sale can have no other effect than mere private sales in England. In deciding the case last mentioned, the supreme court cite that of Parker v. Patrick, 5 T. R. 718, as being in favor of the defendant; which is the same case cited by the counsel for the plaintiffs in error on the argument of the question. In Parker v. Patrick, the goods had been fraudulently obtained of the defendant and pawned to the plaintiff for a valuable consideration, without notice of the fraud. After the conviction of the offender, the defendant obtained possession of his goods, but by what means does not appear. The plaintiff brought an action for their recovery, and it was contended that he, although an innocent pawnee, could not recover, as he derived title through a fraud, and was like a person deriving title from a felon. But Lord Kenyon thought the cases distinguishable, and the plaintiff had a verdict. A motion to set aside the verdict was denied, and the court held that the statute of 21 Hen. 8, ch. 21, did not extend to cases of fraud, but only to a felonious taking. By that statute the owner of stolen property was entitled to restitution upon the conviction of the felon. But as that statute did not apply to a fraudulent obtaining of goods, the owner was not entitled to restitution-and the question was then, say our supreme court in commenting upon that case, purely at common law, and the innocent pawnee was allowed to recover against

Hoffman v. Carow.

the owner. Although in the statement of that case it is said that it does not appear by what means the defendant obtained the possession of the goods, yet I think it is evident from the opinion of the court that the offender was prosecuted for the fraud and convicted: and that thereupon the court before whom he was tried, awarded restitution to the owner, and this view of the case becomes the more important, because the main question to which the attention. of the king's bench seems to have been called, was whether the statute of 21 Hen. VIII. extended to the case of goods obtained by fraud, so that restitution might be awarded to the owner upon conviction; for if it did not, then the defendant had no right to the possession, and it was still in the plaintiff to whom they had been pawned. For this reason it appears to me that the case is of little weight in settling the question on either side.

It is insisted by the plaintiffs in error, that the same principles should apply equally to the cases of property obtained by fraud or felony, so far as innocent parties are concerned, and that the statute merging the civil action in the felony only applies as between the felon and the original owner of the property, and not to third persons. The courts, however, in England and in this country, have thought they saw some reasonable distinction between those cases; and that the doctrine relating to the fraudulent acquisition of property, was not applicable to the felonious taking of it. But recently, in the English court of common pleas, in the case of Samplin v. Addy, sheriff of Warwickshire, Chief Justice Best virtually held that no such distinction existed. Our supreme court in adverting to that case in Mowry v. Walsh, 8 Cowen, 240, think the opinion of Chief Justice. Best,"certainly at variance with the settled principles of law." This shows at least, that there is a difference of opinion among sound lawyers on that point; and I must confess that it appears to my mind very difficult to draw a satisfactory distinction between the two cases; either the original owner should be entitled to his property in both, or an innocent vendee or party should be protected as well in the one instance as the other.