
    Charles Bliven & Edward B. Mead, Appellants, v. The Hudson River Railroad Company, Respondents.
    In an action against a common carrier for goods delivered to him to be transported, etc., the right of the true owner may be set up by the carrier as a defense against the shipper or bailor, in all cases where the property has been delivered to such owner, either voluntarily, or on demand, or where it has been taken by legal process in a suit instituted for such purpose.
    The common carrierja .exonerated from his obligation to his bailor, where the property of the latter is taken from him by legal process and where the carrier immediately notifies him of such taking.
    
      R. Van Pelt, for the appellants.
    
      John H. Reynolds, for the respondents. . ■
   Parker, J.

On the second, day of September, 1859, the plaintiffs delivered, to the defendants, at their depot, in the village of Sing Sing,. Westchester county, twenty-nine cases of saw plates and handles, of the value of $4,338.82, for transportation to the city of 'Sew York, which were on that day placed by the defendants in their freight ears for that" purpose.

Before the regular hour for the departure of the train in which they were to go, a complaint was made on oath bygone Cheeseman, to a justice of the peace at Sing Sing, to the effect that the said merchandise had been stolen or embezzled from the Eagle Saw Manufacturing Company at Sing Sing (of which company Cheeseman claimed to be the secretary), and that he suspected that the said property was concealed in a railroad car at the Sing Sing depot. The magistrate thereupon issued a warrant to search for the property, and delivered it to a constable of the town, who, in proceeding under it, on the morning of the 3d of September, forcibly opened the car in which the merchandise was locked, and seized, and took the same before the justice, who thereupon sent the same to the place of business of the said manufacturing company, and there delivered the same to said Cheeseman, for said company. The plaintiff, Bliven, was at. such place of business on the morning of the day on which the merchandise was so delivered, and was then made acquainted with, and fully knew, all the circumstances attending the taking of said merchandise out of the possession of the defendants, as before stated.

It further appears, by the findings of the referee before whom the cause was tried, that the certificate, by the filing of which on the 28th of ¡November, 1858, the company became incorporated, provided for the management of its affairs by five trustees, of whom plaintiff Bliven was one, and Cheeseman one; and that, by the by-laws, three trustees constituted a quorum; that on the organization of the company, a president, treasurer and secretary were chosen from the five trustees, Bliven being the treasurer. The manufacturing carried on by the company was done in the Sing Sing prison, by the hired labor of convicts, in shops provided for the company and under a superintendent employed by the company. Immediately upon the organization, a contract was made by the company with the plaintiffs, by which plaintiffs were to have the sale of all the articles made by the company, on a commission, and were to make advances to the company, and hold all the articles consigned to them as security for such advances. And subsequently, on the 30th of June, 1859, the company gave the plaintiffs a chattel mortgage on all their fixtures and stock, manufactured and unmanufactured, and all their other goods and chattels then or thereafter to be at the works in Sing Sing prison, as security for the payment to plaintiffs on demand, of all advances'made, or to.be made, by them to the company.

On the 31st of August, 1859, at an adjourned meeting of the trustees, the said Cheeseman and one other trustee, in the absence of the others, assumed to remove the president, and declare his office as trustee, vacant, and to elect one Francis trustee in his place; and at a subsequent time in ¡New York, to which they adjourned, assumed, in conjunction with said Francis, to remove the secretary from his office, as such, and to appoint Cheeseman in his place.

Cheeseman thereupon proceeded to Sing Sing, to the works of the company in the prison, and took possession as secretary, notifying Hawley, the secretary, of his removal.

On the 2d of September, in the absence of Cheeseman and the superintendent, Hawley, still claiming to be secretary, went with Bliven- to the premises, and caused the articles of merchandise in question, which were not in a state of completeness for the market, to be boxed up and delivered to Bliven for the plaintiffs, and he thereupon delivered them, as before stated, to the defendants, for transportation to New York, where was the plaintiffs’ place of business for selling the merchandise received by them for sale. It does not appear from the findings of the referee, that the plaintiffs had made any advances to the company, or that the company was at that time indebted to the plaintiffs.

There is no dispute that the ownership of the goods was in the manufacturing company, and- the facts found fall short of showing that the plaintiffs had any lien upon them. The taking of them by Bliven, on the 2d of September, was not warranted by the original contract, for that contemplated only the consignment to the plaintiffs of articles fitted for the market. • Neither was it warranted by the subsequent mortgage, for there was no indebtedness, so far as appears, on which to rest a lien, by virtue of it. The description of the mortgage given by the referee, is that it was upon “ all the engines, shafts, tools, anvils and fixtures, stock manufactured and unmanufactured, or in course of manufacture, and all other goods and chattels of the company now or hereafter to be at the works in Sing Sing prison, as security for the payment to the plaintiffs, on demand, of all advances made, or to he,made, by them to the company.” The fact of the existence of such a mortgage does not carry with it the presumption of an existing indebtedness, as between the plaintiffs and the company; therefore, so far as appears, hot only the ownership, but the right of possession, belonged to the company.

The goods, then, belonging in fact to the company, without any right of possession in the plaintiffs, the delivery of them by the justice at the company’s shop,- from which they had beep taken, to a person having the actual possession of it for. the company, was a delivery to the company. - The defendants, then, are entitled to take the ground that the goods were taken from them by valid legal process, and, under such process, delivered to the true owner.

If it is said that the evidence shows an indebtedness from the company to the plaintiffs, we are not at liberty to go into the evidence-for the facts, but must-take them from the findings of the referee. If'.we were at liberty to examine the evidence, and form our own conclusions of fact, we should see Bliven present- at, or immediately after, the delivering up of the goods at the company’s rooms,' claiming them under plaintiffs’ mortgage, and as agent of the company, and directing Rooney, the superintendent, who was1 in charge of the establishment for the company, to keep them, and let no one take them without his 1 (Bliven’s) consent, .and that Rooney thereupon' put them back where they belonged, and ■ where they had been the day before, and‘that they remained there about a month. This, I-think, we should have to consider, either as a taking of them into his own possession, or as consenting to the possession of the' company, either of which would exonerate the defendants.

But as the case stands upon the findings of the referee, I think it may well be considered a case of delivery to the true owners, through the regular process of the law; so that, even if the mere taking of them - out of the defendants’'possession by valid legal process would not alone be a defense, there can he no doubt that, on this ground, a- good defense ■ was made to the action. It is well- settled that the- right of the ' true owner may be set up by the carrier as a defense against the shipper or bailor,'in all cases where the property has been delivered up to him by the carrier, whether voluntarily on démand, as in Bates v. Stanton (1 Duer, 79) or taken by process in a suit instituted for that purpose.: (Van Winkle v. U. S. Steamship Co., 37 Barb., 122; Barton v. Wilkinson, Vern., 186.)

But my associates, not passing upon the question whether the property was delivered to the true owners, desire to put this case upon the doctrine that the common carrier is exonerated from his obligation to his bailor, where the property of the latter is taken from him by due legal process, provided the bailor is promptly notified of such taking.

It is to be remembered that the plaintiff Bliveh had notice of the taking of' the merchandise from the defendants, with all the circumstances attending it, on the morning when it occurred; so that the case is fully within the doctrine just referred to.

The judgment of the Supreme Court should therefore be affirmed.

All affirm, on the ground that when the property is taken from the carrier by legal process, and he gives notice thereof, he is discharged.  