Hoffman v. Carow.

against such firm under such circumstances, no mercantile commission house could thereafter exist in the city of NewYork. Baltimore, so far as this question is affected, is a foreign city, and the state of Maryland a foreign state. The several states of the union, it is true, have confederated for their mutual safety and good government, but in all matters which relate to their internal police, legislative and judicial, they are as much foreign to each other as if situated on either side of the Atlantic; and therefore, in determining this important question, it should be done with a reference to the effect it is to have upon our foreign commercial relations. As I have before remarked, there has been no case, like the present, judicially determined by this court. Saltus v. Everett, 20 Wendell, 267, was not the case of property sent to an agent to be disposed of, and the proceeds remitted, but was the case of property converted here by a principal, between which two cases there is, in my judgment, a wide distinction, and involves the same principle as that of Everett v. Coffin, 6 Wendell, 605.

Having thus passed through with such an examination as I have deemed it my duty to give this matter, I have to add that the rule, as attempted to be established on the part of the defendant in error, is in my opinion too broad. Although I admit that the government is bound to assist the rightful owner of property in recovering the possession of it when it has been unjustly or feloniously taken from him; yet I insist that this should not be at the expense of an innocent person, without some notice, and especially in the present case, where the defendant in error kept the offender in his employment, in which he was at the time of the felony, although he had no charge of the goods; that, however, only serves to free him from a breach of trust, and is introduced for the purpose of showing it was a felony. The principle applies here with great force, that where one of two innocent parties must suffer, the law will impose the penalty upon him by whose fault the necessity exists. The defendant in error kept the felon in his employment, placed confidence in him, and the strong probability is that but for the facilities which his employment in that store afforded him, the felony would never have been committed. At the

Hoffman v. Carow.

civil law, when things were damaged or stolen by any of the servants belonging to a ship or an inn, the master of the ship or inn was held liable to pay double the value of the goods so damaged or stolen to the person sustaining the loss; but when the damage or theft was done by a stranger, or by persons unknown, the master was simply obliged to make good the loss. The reason for this important distinction is very evident. The master had in the first instance placed those servants there, and reposed confidence in them, which was a voluntary act on his part, and he should therefore answer for the wrong he had done the community by employing improper persons, as, in most cases, the exercise of an ordinary degree of caution would have enabled him to have become acquainted with the character and habits of his employees; but in the second instance, the master had not employed the person who committed the injury, or at least the fact that he had done so could not legally be brought home to him, still as the goods had been deposited with him, they should be forthcoming, or he should pay their value, but no damages as in the first instance for the wrong he had done society by keeping about him untrustworthy servants. The application of this principle to the case in hand may be made with much facility and correctness. Although I fully assent to the legal propositions, that no title passes where a felon sells stolen goods even to an innocent purchaser, and that the owner is entitled to take his goods wherever he can find them, yet I can by no means assent to the inference sought to be drawn from those propositions: that an innocent agent who is not a purchaser, who claims no title to the goods in himself but merely acts as a public auctioneer in disposing of them at public and open sale, and under a public notice that he will do so-who has paid over the proceeds of that sale, and delivered the property to the vendees before any notice or knowledge of the felony, and without any facts or circumstances to put him on his guard, and without any previous demand having been made upon him-is liable in an action for the value thereof to the owner. For these several reasons, I think the judgment of the supreme court should be reversed.

Hoffman v. Carow.

By Senator VERPLANCK. The decision of this court last year, in the case of Saltus v. Everett, 20 Wendell, 267, acknowledged and confirmed the principle, that the owner of personal property cannot be divested of his rights, unless by his own act or his own assent; and that it is no defence against such superior and original title for a subsequent possessor, that he honestly purchased the goods in the course of trade from a person not authorized to sell them, though otherwise in lawful possession. In applying this doctrine to the present case, the following questions arise: The plaintiff below seeks to recover the value of his goods, not from one having them in possession and refusing to deliver them, or from one who sold for his own benefit, or otherwise converted them to his own use, but from auctioneers who received the goods without knowledge that they had been stolen, sold them and transmitted the proceeds to their supposed owner, who was in fact the felonious taker of the property. Are these innocent sellers liable to the true owner for the amount of his loss-or must his remedy be limited to following the goods themselves, and recovering them or their value from the person actually in possession under a defective title?

The principle of the decision in Saltus v. Everett, and of the authorities on which it rests, apply with equal force to the present case. The policy of our law is to make every man look to the character of those with whom he deals, and who are responsible for the title of property in the articles bought and sold. If he does not do this, he must take the consequent risk. The same considerations of public policy apply to him who sells as the agent of another, as to him who buys; both of them are to look to the character of the person with whom they deal. If in this they are negligent, or have been deceived, they must take the consequences whenever their rights come into conflict with those of any innocent sufferer by the act of the same guilty third party. Accordingly the doctrine of our decisions is, that the original and true owner of moveable property, who has not by his own act or assent given a color of title or an apparent right of sale to another, may recover the value of

Hoffman v. Carow.

those goods from any one having them in possession and refusing to deliver them up, or who has applied them to his own use, or has in any other way converted them, i. e. has changed the substance of the things in question, their character, use or ownership, to the injury of the real owner. The ground of the action used for the purpose is not the actual possession of the moveables, but some wrongful act relating to them a tortious refusal to deliver them, a tortious taking, or else their wrongful conversion; which last is presumed upon the refusal to give them up, and which is proved by a sale without authority. According to Lord Coke, in the oldest leading case on this head, which still preserves its authority, Isaac v. Clark, 1 Bulst. 312, "there must be an act done to convert one thing into another," and a converting into money by sale has always been held to be within this definition. The very recent English case, Peer v. Humphrey, 2 Ald. & Ell. 590, recognizes this same doctrine.

In the argument before us, it was very strongly urged that a rule of law, thus charging mere agents, would work great public injury as well as private injustice; as it would extend to common carriers, ship masters and others, through whose hands goods feloniously or wrongfully obtained might pass. There may be some cases going to that length, but they are not, in my judgment, within the principle or the policy of the rule, nor are they included in the older decisions-as, for instance, in the one just cited from Bulstrode. I cannot think the law charges one who had accidentally a temporary possession of goods without claim of property, and with which he has parted before demand. It requires a wrongful taking or conversion of the thing itself to make the transaction tortious. The auctioneers who had sold the goods now in question have made such an unauthorized conversion, and must be answerable for the value. In this instance the rule falls hardly upon innocent and honorable men; but looking to general considerations of legal policy, I cannot conceive a more salutary regulation than that of obliging the auctioneer to look well to the title of the goods which he sells, and in case of feloniously obtained property, to hold

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him responsible to the buyer or the true owner, as the one or the other may happen to suffer. Were our law otherwise in this respect, it would afford a facility for the sale of stolen or feloniously obtained goods, which could be remedied in no way so effectually as by a statute regulating sales at auction, on the principles of the law as we now hold it.

II. It has been maintained with great ability that the rule thus stated, though admitted to be true as to goods tortiously obtained, does not apply to goods feloniously taken, and that damages for the conversion of such goods can be recovered only after conviction of the felon, and only from the person converting or refusing to deliver the goods after that time. In the present case, the felon was convicted, but the conversion and sale had taken place before the conviction. This ground was probably not taken before the supreme court, as it is not noticed in the opinion delivered in that court. I am not quite clear whether this may not be the existing law of England, and whether an action like the present could at any time be maintained there. By the ancient common law a person robbed could regain his property only by an appeal of larceny after conviction. The statute, 21 Hen. VIII, gave the party robbed a right to immediate restitution after conviction. Several decisions upon the act gave it a construction in conformity with the old law of appeal. It was strictly held that the civil action was merged in the felony. After conviction of the felon, the stolen goods could be reclaimed even if sold in market overt, and whoever sold them after that date was deemed a tortious converter. But it has been expressly decided that the owner who had prosecuted the thief to conviction, cannot recover the value of his goods from one who bought them from the thief, and sold them again before conviction, even with notice. 2 T. R. 750. In the words of Chief Justice Best, in another case, Simpson v. Woodhert, 2 Carr. & Payne, 41, "The law is this: you must do your duty to the public before you seek a benefit to yourself; and then there is no necessity for a civil action. The decisions, says he, go not only to the case of an action against the felon, but also against persons who derive title under him. If