Hoffman v Carow. The other case cited by the chief justice, is that of Andrew v. Dieterich, 14 Wendell, 32, decided in 1835; and is the first case in which the question as to the felonious acquisition of property came directly before the court. It was an action of replevin. The facts were, that one Simmons purchased of the plaintiff a quantity of carpeting, for which he was to pay cash as soon as it was measured and the quantity ascertained; it was sent to him; after which, instead of paying for it, he absconded. Previous to absconding, he applied to the defendant who was an auctioneer of household furniture, to sell his furniture, and obtained on it an advance of $350, and gave the key of his house to the defendant. After the carpeting had been three weeks on the floor of the house, the defendant removed it and the other things to his auction room. The plaintiff demanded it, and the defendant refused to deliver it up unless his lien was discharged, upon which the suit was brought. Justice. Oakley, of the superior court, on the trial, charged the jury that the defendant was entitled to a verdict, if they found there had been a complete delivery of the property by the plaintiff to Simmons; and that when the defendant made the advance and took possession of it by way of pledge he was ignorant of any circumstances which ought to have put him on his guard as to the manner in which Simmons had obtained it from the plaintiff; and that if they found such a delivery by the plaintiff to Simmons, the plaintiff could not recover on the ground that the property had been feloniously obtained. The jury found for the defendant. By this charge, the law was given to the jury, and they passed upon it, as it had been understood to have been settled by the previous decisions. But the cause having been brought to the supreme court, on exceptions taken to the judge's charge, that court reversed the judgment on the ground that the goods were obtained under false pretences, which was made felony by statute. This was one of the first cases decided under that law for converting civil remedies into criminal prosecutions, the effect of which was to convict a man of a felony in the eye of the world in a civil action, to which he was not a party, and where he had no op Hoffman v. Carow. portunity of making his defence. The extention of this questionable policy so much at variance with the common law which holds every man innocent until legally convicted, shows the necessity of coming back to the principle of the English courts, and of requiring a conviction of the offender before the prosecution of these civil remedies should be permitted, much less encouraged. In giving their opinion, the supreme court to some extent affirm the law as it was before held, and say that "a fraudulent purchaser acquires no title as against the seller, but as possession is prima facie evidence of property, where the vendor has delivered possession of his goods with intent not only that the possession, but the property shall pass, a bona fide purchaser from a fraudulent vendee shall hold the goods in preference to the owner." With all due deference to the opinion of the able judges of that court, I have understood the law to be a little different from that by them stated; that as between the original owner of the goods, and a subsequent bona fide purchaser from a fraudulent vendee, it is not made a question whether the owner delivered the goods with the intent that the possession or the property should pass; and that in cases where the delivery was merely conditional as between the original parties to the contract, as where the payment is to be made simultaneously with the delivery, but is omitted or evaded by the purchaser on obtaining the delivery of the goods, although there the delivery is merely conditional, and the non-payment is an act of fraud entering into the original agreement, and rendering the whole contract void as between the buyer and the seller, yet as to a subsequent innocent purchaser from that vendee, it is not so; for if the owner indiscreetly parts with the possession to the vendee, he cannot afterwards reclaim the goods to the prejudice of the rights of subsequent bona fide purchasers or creditors of his debtor; for where one or the other of innocent persons must suffer, the law imposes the penalty upon him by whose fault the necessity exists. An auctioneer, does not claim the goods as his own, or assume any right in or over or to dispose of the same as his Hoffman v. Carow. own property. It is true he has a special interest in goods sent to him to be sold, and a lien on them, or their proceeds, for the charges of sale, his commission, and the auction duty payable to the state; he may sue the buyer for the purchase money; and is responsible to the vendee for the fulfillment of the contract of sale unless he discloses the name of his principal at the time of sale; yet, for all other purposes, he is the mere agent for the transmission of goods from one set of traders to another. It appears to me unjust to charge him with the value of the goods sold in a case like the present; though I admit that if he had received notice that the property he was about to sell did not belong to his principal, and notwithstanding such notice he proceeded to sell, he ought to be held responsible to the real owner for the value of the property, or the amount of sales, as such owner might elect. In criminal cases it is the scienter, or the intent, which constitutes the crime; and can it be just or equitable in a civil action to place an innocent man, an agent, one who is admitted to have acted without knowledge or evil intent, in a worse situation than one who is arraigned for a criminal violation of the laws of his country? And to excuse the one from punishment if he has unwittingly or unintentionally violated those laws; and at the same time to mulet in damages the other for a technical illegal taking of another's property. It is not the fact that the law regards the intent only in strictly criminal cases, for the question of fraud at the common law depends upon the motive. So if a person buys goods of another against whom he knows there is a judgment, and does not do it to defeat a creditor's execution, it will not affect his purchase. All the cited cases, and which I have previously examined, show that there was a demand made before suit brought. In this case, it is not pretended that before this suit was instituted there was any demand whatever made, the claimant resting alone upon the legal principle that the sale was a conversion. I am satisfied, however, that a formal demand should have been made on those auctioneers before this suit was brought; and that it should never be permitted that a person who comes innocently into the mere cusVOL. XXII. 40 Hoffman v. Carow. tody of property, without claiming any title to it in his own right, and who by virtue of a public office conferred upon him by the government of the country, acts merely as agent for the sale of that property, and is known as such to the world, should be held liable to respond in damages to the person who may afterwards prove to be the owner, without having at least the opportunity of settling with his adversary, or of paying the amount claimed without being charged with the additional penalty of the costs of a suit. I am still further satisfied, even allowing for the sake of argument that such formal demand had been made, that the plaintiffs in error, under circumstances like those exhibited in the present case, should not be held liable; and the more especially so when the person who claims to be the owner, does not show that he has taken any pains, by advertisement or otherwise, to caution the community that the property in question has been feloniously taken from him; but permits them to receive it from the felon, and to pass it away to other hands, without the slightest intimation that the title does not accompany the possesion in that as in all other cases. What reason can there be, that the principle which the courts have with so much justice adopted with reference to stolen bills of exchange and promissory notes, should not be applied to other personal property, equally the subject of mercantile transactions? Why not here as in the cases of those evidences of debt, hold the claimant bound to exercise due diligence in given the public notice of his loss; and leave the fact of proper diligence on his side, and of due caution on that of the defendant, for a jury to determine from all the circumstances of the case? It is because in the case of bills of exchange and promissory notes, the endorsement passes the title? Then equally effective is the possession of goods to evidence the title in all cases, except where the courts have interposed, and held innocent parties liable because they had done that which they believed was legal and right; and had no means of knowing to the contrary but by that information. It is also urged on the part of the plaintiffs in error, and with strong reason for its support, that although possession Hoffman v. Carow. may not always be conclusive evidence of property in merchandize, yet when merchandize is abroad in a foreign country, the exigency of commerce requires that possession should be considered as conclusive evidence of property in all cases, where the purchaser acts in good faith, and without notice that the goods do not belong to him who is in the possession of the same. This it would seem should be the rule, as the title of personal property passes by the delivery; and in two thirds or even three fourths of all that is passed through the millions of hands both in this country and in Europe, no other mode of passing the title is used. The public interest demands that such a rule should be adopted, or public notice should be required in all cases of the loss by felony of personal property. Otherwise, I cannot divest my mind of the strong impression which it has received, that a blow will be struck at the commercial interests and prosperity of our state, the extent of the evil effects of which it will be difficult to conceive. All who are in the least acquainted with the commercial relations of our country know that they are very extensive and important both with England and France and other countries, amounting to many millions of dollars in the course of a year. Suppose for an instance, that a man in either of those European countries should obtain goods by felony-for there are bad men all over the world-and consign them to a mercantile house in New York, one of the most respectable firms in that city, with directions to sell on his account and remit him the proceeds; and they, without any knowledge of the manner in which the goods have been obtained, receive and dispose of the same, and remit the avails as directed; and that some months after comes another person and claims those goods as his property, and in order to be parallel with the case under advisement, without saying a syllable to those merchants in New York, and without ever having given any notice to the world of his loss, he commences an action of trover against them. Would this or any other court hold them liable in that action? or would not a sense of justice and equity revolt at such a proposition? If such an action should be sustained, and a recovery had |