
    Pool vs. Adkisson et al.
    
    Detinue.
    
      April 17.
    Statement of the
    In an action to recover slaves conveyed (by a, third person) to the plaintiff, in trust, to secure certain debts,ev idence that the debts had been “paid or nearly so,” was properly rejected — it would bear only upon a question proper for chancery.-See Sco-iee vs. Jones fyc. ante, 13.
    [Mr. Morehead for Plaintiff: Mr. Crittenden for Defendants.!
    From the Circuit Court for Trigg County.
   Chief Justice Robertson

delivered the Opinion of the Court. — .

Judge Underwood dissenting.

This is an action of detinue for two slaves, claimed by the defendants in error, (who were plaintiffs below,) under a deed of trust, whereby Edward Carlton, sen. transferred to them the right to the said slaves, and other property, for the payment of certain debts due by Carlton to persons for whose benefit the trust was created.

Yerdict and judgment, in the usual form, for the slaves, or,their value, having been obtained against Fool, he prosecutes a writ of error, and complains that the circuit court erred to his prejudice — 1st. in refusing to admit certain testimony which was offered by him on the trial; $nd. in overruling a motion for a nonsuit, and 3rd. in refusing to give to the jury an instruction proposed by him.

I: The matter rejected by the circuit court,was a cross bill of discovery, which had been filed by the plaintiff in error against the defendants, and taken for confessed ; in which the only allegation pertinent in this case is, that the debts, for securing which the deed was given, had been “paid, or nearly paid.'” The admission of such an allegation was insufficient to prove, either that the debt had been paid, or that the absolute title had been revest-ed in the alienor; and could not have tended, legitimately, to bar, or affect, the cause of action for which this suit was instituted. But, if the slaves or their value be more than sufficient for the payment of the debts, a chancellor might, in a proper case, afford appropriate relief; but he alone could do full and final justice among all persons who may be eventually concerned.

Evidence, that the defendant— in detinue for slaves,which he had sold, as the agent of another, had some knowledge of, and co-operated to defeat, the title of the lawful owner, v/as proper for thejury, and sufficient to preclude a non-suit.

Anypersonwho has had tne pos session of, and has sold, used, or detained, the property of another — either for himself, or as the agent,or servant, of a stranger — is liable (in detinue) to the true owner, for the property, or its value — whether he was, or was not, conu-sant of the right of the true owner-and whether he had, or had not, parted with the possession, before the suit. See Judge Underwood's opinion, post.

II. If detinue be an appropriate action — and even if a person would not be liable, in any form of action, for disposing of the chattel of another, bona fide, as an agent of a person who was not the true owner, (which we will presently consider,) — nevertheless the circuit judge did not err in refusing to direct a nonsuit; because the jury might have inferred, that the plaintiff had some knowledge of the right of the defendants, and co-operated with his constituent in an effort to frustrate that right.

III. The plaintiff in error moved the circuit court to instruct the jury, “ that if they believed from the evidence, that (he) had possession of the negroes sued for, only as agent of Carlton, and parted with possession of the same before any demand, or suit brought,without a knowledge of the plaintiff’s claim to them, they must find for the defendant.” The refusal to give that instruction furnishes the ground on which Pool mainly relies for a reversal of the judgment.

The proof was, that Pool took the slaves to Missouri, and had afterwards said to one witness, that he knew where they were, and to another witness, that he had sold them ; there is no evidence that he had ever paid to the person who, as he says, employed him to sell them, the price, or any part of the price, for which they were sold, if sold at all. Nor is any such payment even hypothetically stated in the instruction as proposed. In considering the proposition, therefore, the conduct of .the plaintiff should be viewed in the same light as it should be if he had admitted that he had not paid his constituent. A

Thus considering the case, two principal questions arise: First. According to the hypothetical case stated in the instruction, was Pool liable to any action whatever ? Second. Is. detinue an appropriate action ?

First. That Pool’s conduct must be deemed injurious to the owners of the slaves, has not been denied in argument, and cannot be doubted. But his learned counsel insists, that his acts were those of his employer, who is alone legally responsible to the injured party, if, as an agent merely, he (the plaintiff,) acted in good faith and within the scope of his authority. Is such the true and well settled doctrine of the common law ? We think not-: Far — very fár — from it.

The authority of an agent can never exceed that of the principal. —No one can confer upon another a power which he does not himselfpos-sess ; or authorize another to act illegally.— Whoever,being of legal discretion, acts tor-tious'h/, or in-termeddles with tire property of another without his assent,or the authorityoflaw, is personally responsible to the injured party and the fact that it was done as the agent, or by the request, or command, of a third person, is iio excuse.

líe who has no legal right to do a thing, cannot delegate authority to another todo it. The power of an agent, being altogether derivative, cannot exceed that of his principal. As between the person injured and the actual perpetrator of the wrong, no authority from another, who had no right, can change the legal character, or effect, of the wrongful act. The authority, so far as the wrong was concerned, was void, and therefore, cannot protect or excuse the immediate actor. The injured party has a right to look for reparation to him who was actually and immediately employed in the act from which the injury resulte d. He may sue either the principal or accessary, the employer or employed, the constituent or his agent ; and may (generally,) sue either one separately, or both jointly. No person has a right to dispose of the property of another, without his assent,__gr the authority of law ; and if he shall do so, he will,/according to a general rule of law, which has but few exceptions or qualifications, be legally responsible to the owner. As the jus disponmdi does not belong to any person except the owner, or his agent, or the law, he who presumes to exercise that important right without proper authority, must do so at his peril, and upon his own responsibility. It is no legal excuse, that he acted as the voluntary or hired agent of another person who had no such right himself. The agent cannot avert legal responsibility for his own wrongful act, by pleading that he was employed, or directed, by a person who had no lawful authority/fit is a general rule of law, that no person of legal discretion, whose voluntary act operates injuriously to the property of another, can exonerate himself from liability to the owner for reparation, by merely proving that he did not act for himself, but for another, who hired or requested him so to act, and who had no legal right to use, detain, or dispose of the same property in the same way. An •agent, or servant'is responsible for his own tortious act, even though it was done in submission to the command, or authority of his employer or master. See Paley on Agency, 315-16, and the cases there cited.

In note 23 to Chitty's Blackstone, (Vol. 1 p. 432,) the annotator says : “In every case where a master has not power to do a thing, whoever does it by his command, is a trespasser, (Rol. Jib. 90,) and this though the servant acted in total ignorance of the master's -right. — (2 Rol. Ab. 431.”)

The reason is stronger why a voluntary -agent should be liable in a similar case. See 5 Burr, 2687.

Exercising unauthorized dominion over the property of another, or even asserting a right to it for another who has no right, may be, and generally will be, iorong-> ful or “tortious" as to the owner. See 2 Strange, 813. 2 Saunders Reports, 47, n. e. Bristol vs. Burt, — 7 Johnson's Reports, 256. Shotwell vs. Few, — Ibid. 302, and Murry vs Burling, — 10. Ib. 172. Perkins vs. Smith,— 1 Wil. 328.

In Perkins vs. Smith (supra,) a servant was held liable, in trm¡^«j|tóoods which-he had received from a bankrupt, when his bankruptcy occurred,) and had sold, at themaster’s request, to pay a debt due from the bankrupt to the master. It does not appear from the case, as reported, that the servant had notice of-the bankruptcy. In that case, Chief Justice Lee said¡^“The point is, whether the defendant is not a tortfeasor, for if he is so, no authority that he can derive from his master can excuse him from being liable in this action. ^Hughes, the bankrupt, had no right to deliver these goods to Smith ; the gist of trover \j the detainer, or disposal, of goods, which are the property of another, wrongfully; and it is found that the defendant himself disposed of them to his master's use, which Ms master could give him no authority to do; and this is a conversion in Smith, the disposal being his own tortious act, the act of selling the goods is the conversion, whether to the use of himself or another, it makes no difference.'^

Parker et al. vs. Godin, (Strange, 813,) is a still stronger case. The wife of a bankrupt delivered to a servant plate to sell ; the servant, delivered it, near the door of a pawn-broker, to Godin, who pawned it in his ownvname, and delivered the money to the mistress. The 'assignees recovered damages from Godin, in trover.

In a post-revolutionary case (in King’s Bench,) a mew chant’s clerk was held liable in trover, for goods which he sent to his employer, although they had been delivered to him for that purpose, and he did Hot know that neither the bailor, nor merchant, had any right to them. In that case, Lord Ellenborough said : — “ The clerk acted under an unavoidable ignorance, and/or his master’s benefit, when he sent the goods to his master ; but, nevertheless, his acts may amount to a conversion ; for a person is guilty of a conversion who intermeddles with my property, and disposes of it, and it is no answer that he acted under authority from another, who had himself no authority to dispose of it. Jlnd the com1 is governed by the ‘principle of law, and not by the hardship of any particular case.” Perkins vs. Smith, (supra,) Cooper vs. Chitty, 1 Burr. 20, and other cases were cited in that case.

In another case, the same Judge said : — “ According to Lord Holt, (in Baldwin vs. Cole,) the Myssuming to onesself the property and right of dis^^HBFanother man’s goods, is a conversion , and certarakw- a man is guilty of a conversion who takes my property! by assignment from another who has no authority to dispose of it, for what is that but assisting that other in carrying his wrongful act into effect 9

In 6 Modern, Lord Holt said — “ Jlny disposing of another’s property without his authority, is a conversion.”

The foregoing cases and extracts are presented to prove, not only that an unauthorized bailment cannot, according to a general principle of law, exonerate the bailee from legal liability to the true owner, for any injury to the property, or to its propriet or, resulting from the voluntary act of the bailee, but also that the quo animo, or motive, is not generally essential to his liability for reparation, or restitution, to the person whom, ignorantly or Wantonly, he had injured.

The rule thus recognised depends on an obvious principle, sustained, (we think,) by analogy, justice, and authority. It is, that he, whose voluntary act, whether for himself or another, operates injuriously to the rights of another, shall be responsible to the person who may be injured by'the wrongful act. The security of rights— property itself, would be injuriously affected by the repudiation of a principle so just and so universal.

Purchaser of a chattel,from one in possession, who had no title, nor authority to sell, is responsible for the value, to the true owner.

An agent, who sells a chattel for one who had -no right to it, and is made responsible to the owner,must look to his employer, for indemnity.

^ Possession of a chattel is one indicium of title. But a purchaser, or bailee, who, trusting to that assurance of title in the possessor, or to his honor, veracity or warranty, must do so at his peril. A purchaser of a chattel from a person in possession without title or authority to sell, will be responsible to the owner for its value even though he had, after paying his vendor a.full price,given the property to him. He trusted to the vendor and to his possession, and for so doing, might be subjected to a double loss — the price he gave, and also the value to the owner. He acted on the presumption of title in the vendor, and upon the security to be expected from an express or implied warranty of title^

The agent who, for hire or otherwise, sells a chattel for another in possession without right, must likewise look to his employer, for indemnity for his liability to. the true.owner. In assuming the right to dispose of the property, he injures the owner, and acts upon his own responsibility. If his principal be able to indemnify him, he will sustain no eventual loss. If the principal be insolvent, that must be the misfortune of his rash or confiding agent. In that event, it is more just that the agent should suffer the consequences of his own wrongful conduct, (especially if he received a reward for. his service and so far acted for his own benefit,) than that the owner, whose rights had been outraged, should be denied any redress. As between the wrong doer, and the person injured, it is not material whether the injurious act was for the benefit of the actor, or for himself and another person, or for that other exclusively ; nor is it essential that the actual perpetrator should have known that his authority was insufficient.

Every person who' ventures to dispose of the property of another, without his authority, or that of the law, acts injuriously to the owner, and, therefore, in contemplation of law, tortiously.^If A tell B to shoot a horse for him, asserting that it is his (A’s) horse, and B accordingly kill it, may not C, the right owner of the horse, maintain ah action against B, for killing it, without his authority ? and will B’s ignorance of C’s right excuse {¡lc wrong, or exonerate him from responsibility for the injury ? Surely not — such is not, — should not be, the* law. I‘f A steal the slave of B, and, whilst in possession-, employ C to assist him in carrying the slave to Missouri, and there selling him, may not B sue-both A and C, severally, or jointly, for a- trespass on his rights ? and could C excuse himself by pleading that he was only the instrument of A, and did not know that the slave was not his ? Certainly a joint suit might be maintained againt A and C, and if the latter should be compelled to pay the whole of the damages, he could not recover contribution from

A sheriff who levies on, and sells, property represented,and believed (without any suspicion to the contrary) by him, to be the property of the def’t in the ex’on,but which turns out to be the property of a stranger, is liable to the stranger for its value.

A, unless he could do so on the ground of an implied guarantee.

A sheriff, who is not only a public agent, but may also be deemed sometimes an agent of both creditor and debt- or, having a fieri facias in favor of A-, against B, levies it, at the request of both of them, on slaves in the possession of B, and accordingly sells them,without knowing, or even suspecting, that any other person than B has title to them. But C afterwards sues the shériff, in trespass or trover, for selling the slaves, and proves, that, at the time of the, sale, he himself, and not B, was the true and exf elusive owner of them, may he not recover their value ? indisputably. Neither the good faith, nor ignorance, of the sheriff, nor the combined authority of B, and of the execution, nor all of them united, could exonerate him from legal liability t-o C, whose rights he had invaded, from whom he had derived no authority, — and as to whom, therefore, he had acted tortiously and injuriously. Is there any reason-for exempting a mere private, voluntary agent from the like liability for a similar 'act ? We have not been able to perceive any. “ Tortious ” is applied to an act, the offspring, not of accident or of legal or physcial necessity, but of sound volition, and which operates injuriously to another person who did not assent to-it, and as to whom it was without authority. This is (as we think) abundantly shewn, not only by tbe more ancient authorities, but by post-revolutionary and unau-thoritative cases, from which we have made some quotations, only to prove that the law, as we understand it and apply it to the facts of this case, has never been shaken, but, even yet, is considered, well established in England, the natal land of the common law.

Assumpsit wili not lit) against, an agent, uuore ceivetf tiie money to wnich a strangei; was entitled, and without knowing oi‘ the stranger’s right, paid it o-vei 'to ins p¿in-cipal — tor the law wiiliioi vm-ply a j.rüVÁse. to whore there was no. knowledge of the right to receive.

Ji i ,../£<*■ Jiuc bai-lee til j;uó£¿iS~ SÍO/¿} ¿Buy no', be nabit . it- *• out a hen t J. anti icíuíhú.; , ■ , iron, t ¿y c ¡ prí.ioiu^ * bill, . suit

It does not appears that, in any one of the cases to which we have referred, any stress was laid on the edge or ignorance (by the agent) of the true proprietorship. The reasoning, in all of them, tends to shew, that the principle of liability was the want of authority in the constituent.

Though Godin pawned the plate in his own name, it was for the benefit altogether of the bankrupt’s wife ; and it is not stated, nor is it fairly inferrible, that he knew that the plate belonged to the plaintiff, in the action against him. And it appears strange, that, if the fact that the agent was ignorant of the legal proprietorship, would legalize, or excuse, his disposition of the property, all the cases had net stated that the ground of his liability was, that he knew that his employer was not the owner. But not one of them even intimates, that that is the only and true ground of his liability ; all seem to consider the want of authority to be the legal ground.

If an agent receive money for his principal, and pay it over to him, supposing it to be his, assumpsit cannot be maintained against him by a stranger who may have been, in fact, entitled to it. The reason is obvious : the law would not imply a promise to pay the money to any one who was not known to be entitled to it. So a bona fide bailee, in possession, may not be guilty of a conversion before a proper demand and refusal. But if he sell the property, whether for himself or his bail- or, no demand is necessary by a stranger who is the real owner. The sale is itself a conversion, and is, as to the owner, tortious in law SC

Now, as the plaintiff" in error voluntarily took the slaves of the defendants from their constructive possession, and, without their consent," or any legal authority, carried them to Missouri, and there disposed of them, it seems to us that, according to both law and natural justice, there should be no doubt, that he should be responsible to them, for an illegal interference with their property • and that they should not be compelled to hunt for another, whom they may never find, and who, when found, might be insolvent. The plaintiff's contract with his employer cannot affect the rights of strangers to that contract. In disposing of the slaves he acted illegally, because he had no legal authority ; and it cannot be denied that a conversion of the slaves to the use of his principal, was as injurious to the defendants, as a conversion to his own use could have been. Even, it does not appear, that his agency was not beneficial to himself; nor is there any intimation, in this whole record, that he had not, at the trial, the price of the slaves in his own pocket, and apart of it converted to his men use,for compensation. lie must be deemed a wrong doer, and is, therefore, liable for the property which he detained and converted. As a free agent, he must be responsible for his own voluntary acts, injurious to the defendants and without their authority. Ills is a stronger — much stronger case than any of those which have been quoted. In all of them, the proceeds had gone to the principal, before suit brought against his agent.

Detinue may be maintained against a defendant who has had possessionofthe chattel sued for, but has parted with the possession (without being dives'ted of it by authority of law,) before the date of the writ.

In deciding the question of liability in this case, we have referred to other cases and authorities for the purpose.. of establishing the legal doctrines which apply to the facts as stated in the instruction, and should determine their legal effect. We have not intended to decide other and fictitious cases, which might be imagined, but will not be adjudged until they, shall be judicially presented. Nor shall we feel responsible for any miscon-' ception, or misapplication, of any authority, or dictum, which we have quoted or cited. The principles which govern this case, are well settled and clearly defined. It is not our business to enumerate or classify all other cases to which they should be equally applicable, or those cases of finding or of mere bailment, to which they might not apply.

II. But is detinue maintainable ? We think it is. Since the case of Burnley -vs. Lambert (2 Wash. 308,) it has been considered, thabproof of possession by the defendant, at the date of the writ, is not necessary in an action of detinue. In Southcote's case (4 Co. Rep. 83,) detinue was maintained against a bailee (to keep safely,) after be had been robbed of the thing bailed.

In many cases it would be difficult to ascertain the motive which induced a defendant to part with the property prior to the institution of the suit for it. And surely the right to maintain detinue, cannot depend on grounds so precarious and delusive as the fact that the defendant was in the possession at the date of the writ, or at the time of its service, or the fact that, in parting with the possession prior thereto, he had acted wantonly or in bad faith. Such a metaphysical enquiry as the latter, seems not to be required by principle or authority, and would, were it required, tend to the subversion of the action of detinue. The plaintiff had rendered himself liable to the action of detinue, by taking and detaining the slaves from the legal owners. Did he, by his own voluntary unauthorized, and therefore illegal act, in selling the slaves, exonerate himself from the pre-existing liability ? We think not. If he cannot surrender the slaves, he may be released by paying their assessed value. But for aught this court knows, or the defendants in error can be presumed to have known, or yet to know, the plaintiff may be able to surrender the slaves in obedience to the judgment, and may, perhaps, yet do so. The defendants prefer the slaves to their estimated value. If the plaintiff sold them, he had no right to do so, and passed no title to the purchaser. Why should the defendants be compelled to go to Missouri to sue in detinue ? Why may they not maintain detinue against the man, here,who took their slaves from this state and detained them, and not only detains them yet, in contemplation of law, but may have them within his power ?

According to the case of Burnly vs. Lambert, the fact that the plaintiff was. not possessed of the slaves when this suit was brought, cannot change, or affect the remedy, unless he had been “ legally evictedThis doctrine, if interpretted literally, may be too restrictive. But it seems to be free from just exception, if understood as we suppose it ought to be, to mean that the plaintiff had been divested of the possession in a manner authorized by lato, and which would, therefore, exonerate him from the charge of tortious conduct. But as his employer could have delegated no more power than he possessed, or could himself have rightfully exercised, his authority to the plaintiff to sell the slaves, did not legalize or excuse that which, if done by himself, would have been a trespass.

An innkeeper, who receives the horse of a guest (as he is bound to do,) merely to shelter and feed him, is not answerable to the true owner of the horse.— But by the sale, exercise of control over, or detention of, the horse, without the sanction of tlie owner, the innkeeper would be rendered lia-No.

No judgment had been obtained against the plaintiff recptiring the surrender of the slaves to the person to whom he delivered them ; nor did he deliver them to any person who had a right to demand them, orto whom he was under any obligation whatever to surrender, or to restore them. He voluntarily and illegally sold them ; and consequently, he was not “ legally evicted,” nor did he part from the slaves in a manner authorized or sanctioned by law. And we are, therefore, of the opinion that the action of detinue may be maintained against him, even though he had been ignorant of the right of the defendants when he sold their slaves. It is a general rule that whenever trover may be maintained for the conversion of a chattel, detinue may be maintained between the same parties, if the chattel be susceptible of identification and restitution. And we perceive no sufficient reason for excepting his case from the general rule.

We have been asked by the plaintiff’s counsel,whether an inn-keeper who, in good faith, had received into his .stable and fed a horse, for and at the instance of a guest who was the ostensible but not the true owner, would thereby subject himself to an action of detinue by the owner ? We answer, mo ; because he would not be liable in any form of action. Nothing which he did, should be deemed wrongful or illegal. It was his duty to receive the guest and the horse which he rode, and to furnish shelter and food to both the man and the beast, if requested to do so. Even the possession of the horse whilst tints in the stable- of the inn, should be deemed to have been in the guest, and not in the host; .and, of course, the latter would not be liable to trover or trespass. But had he detained the horse for his bill, and. thus exercised dominion or proprietorship, or had he sold, or otherwise converted the horse without the sanction of the true •owner, he would have been liable to him, in trespass, trover or detinue, according to circumstances.

Trespass, iro-against who car-gSL tWprop-erty of another seilt. 113 as"

Judge Underwood’s Opinion.

Many other fictitious cases might be stated, for exemplifying the principle of legal liability-, by which this case must be tested. But further illustration -is deemed superfluous. This is a well defined case. It is not ebscur-ed by the twilight near the line separating cases of liability from such as are not governed by the same principle : and it cannot be excepted from the full and decisive operation of the principles recognised and established by some of the foregoing, and many other similar authorities.

It does not become necessary now to decide, whether or not the plaintiff could have been made liable to his employer for the nonperformance of his undertaking io sell the slaves, if instead of selling, he had delivered thern to the defendants; nor whether or not this action could be maintained against him, had he, instead of selling, restored the slaves to his bailor. He did neither of those things ; but by the asportation and sale, did an injury to the plaintiffs, for which they had a right to hold him responsible, in trespass, trover, or detinue.

It may not be improper to suggest, that Story, in his treatise on bailment, shews that, if detinue had been brought against Pool whilst he was in possession, he could not have exonerated himself by restoring the slaves to his bailor, any loose dicta in Rolle, Bacon, or elsewhere, to the contrary notwithstanding. But that point is not involved in this case.

Wherefore, it is the opinion of this court (Judge Underwood dissenting,) that the judgment of the circuit court be affirmed.

Judge Underwood,

dissenting from the views of the majority of the Court, in this case, delivered the following Opinion :

The opinion just delivered, maintains it to be law, that an agent, or bailee, who receives a slave, and parts with the possession, according to the terms of the trust, without any knowledge that there is any paramount title to that of his bailor, is responsible to the trae owner, for the value of the slave and his hire from the time process was served. , ,

* am °PPoset' t° the doctrines of the opinion, because I believe they misapply, or overturn, principles which have been long recognised, and introduce a new rule, which, so far as I can foresee, will bring about a state of distrust and suspicion, tending to destroy the courtesies of life, and to clog the business transactions of society.

A man receives a jewel from his friend, and promises to deliver it to his' friend’s wife or daughter ; or he meets with a person driving cattle, horses, or hogs to market, who is sick and cannot proceed, and he engages to take charge of the drove, proceed with them, make sales, and return the money to the drover ; or he engages to transport produce by land or water, and to sell it, or to deliver it to a designated person ; and he performs the trust in good faith, without knowledge that any one has title to the property delivered to him, paramount to him from whom he received it ; he will, nevertheless, under the opinion delivered, be compelled to pay the true owner the value of all the property which has thus innocently passed through his hands.

The doctrine of the opinion amounts to this : that an agent, or bailee, who receives goods into his possession from his principal, thereby incurs the same liabilities to the true owner, which his bailor was under ; and that this liability continues, although the agent, or bailee, may have parted with the possession according to his contract, without knowledge of the adverse claim. The bailee is thus made surety for the bailor, and must answer for all his wrongs. If benevolence incline him to receive and sell an article from the heacj of a sick family, and to purchase necessaries for their use, his kindness is taxed with the full value of the article in favor of the true owner. His ignorance and the purity of his motives are no shield.

In my researches, I have found no law which, in my opinion, sanctions a doctrine so incompatible with, what seems to me to he, the dictates of natural justice and. sound morals. On the contrary, the lay, as laid down in several elementary books and adjudged cases, is fully up to the point against it.

In Bacon’s Ab. Title, Bailment, D. it is said : “ If I deliver goods to B, and C, that hath right, demands them of him, if B, either before or pending the action,- deliver over the goods to me, this is a good bar to the action of C, brought against B ; for since B hath undertaken to deliver the goods back to me, heshallnotbe charge-' able for the honest performance of that undertaking; for B, that is trusted with my possession, shall not remove or alter iny possession, and, therefore,, shall not be put to-answer for that to which the law obliges him.'” In support of the text F. N. B. 138, Roll’s Ab. 607, and 2 Bos. and Pul. 462, are cited., Here it is expressly laid down, that the bailee may discharge himself from the-action of the right owner, by restoring the goods to his bailor pending, the action. Were 1 to concede that this was going too far, yet where the restoration takes place before the action of the right owner is commenced, and before notice to the bailee of the paramount title, I cannot perceive the slightest grounds for holding him liable. The reason against liability in such case, is, the law “obliges the bai-lee to restore the possession, because it is his contract to do so. It would, thérefore, be iniquitous in the law to give damages against a man for doing that which is enjoined as a legal duty. The bailee cannot set up an outstanding title to justify withholding" the possession from the bailor. If he could, he would thereby change the-bailor’s possession, and put an end to all faith in contracts of bailment. The bailee is estopped to deny the title of his bailor. ’ The case of Stephens vs. Vaughan, 4 J. J. Marshall, 207, fully supports this view of the subject. It is there said, “ the bailee cannot deny the right of his bailor, unless he can shew that it had been ascertained judicially, that some other person had a right to demand restitution ; or unless he could prove that some other person, having a better right than his.bailor had to the property, had taken it from him without his fault.” That case maintains the position, that nothing can exonerate the bailee from the action of the bailor, but the j udgment of a court, recaption by the right owner, “ in a proper manner,” which “ is virtually the act of the law,55 (to use the language of the case,) or the act of God.

If the bailee agree to deliver the property put into his hands to another, or agree to sell it for the use of the foai-lor, and pay over the money, why shall he not be held £t to the honest performance of his undertaking” in-such cases, just as he is when he receives the property to-keep safely ? I cannot perceive a shadow of difference between the cases in principle. If he does perform in good faith, the reason to exempt him from liability to the true owner, is just as strong as it is in the case where he receives the property to keep for an hour, and then restores it to the bailor, without knowledge of any adverse claim. Jones on Bailment, (recent edition) page 51, contains a reference to the code of Napoleon, for the purpose of shewing that the bailee who recieves property to sell for his bailor, and does it, is entitled to the same protection as though he received it for safe keeping only, and restored it in good faith to the bailor. That code is not authoritative here. But it shews that enlightened Fvanee has adopted the principle, which I think sanctioned by English jurisprudence, and eminently conducive to the convenience and prosperity of every civilized nation. It is highly important, in my judgment, to encourage contracts between bailors and bailees, principals and agents ; or rather not to discourage them, by imposing onerous burdens on bailees and agents, when they perform their trusts in good faith, without knowing of, or intending to interfere with, the rights of third persons.

In considering the facts of this case, my brethren have arrived at the conclusion, that the conduct of Pool should be regarded in the same light, as if he had admitted, that he had not paid over to Carlton, the money which he received for the sale of the slaves in Missouri, because “ there is no evidence that he ever made such payment.” I cannot consent tó the propriety of the conclusion ; nor do I perceive, if it were correct, how it could essentially change the character of Pool’s defence. There is no evidence that he ever received any money. Whether he sold for cash in hand, or on credit, is not stated.. If it can be inferred that he so.ld for cash in hand, then the legal infer-dice from the facts should be, that he had paid over the money to his principal, because it was his duty to do so. The presumption of law is, that he performed that duty, until the contrary is made to appear by evidence. The onus devolved on the defendants in error. They proved Pool’s confessions, and from them it appears that he was employed as an agent, by Edward Carlton, who had brought the slaves from Virginia, claiming and exercising acts of ownership over them, to carry the slaves to Missouri, and sell them ; and that he received the slaves from Carlton, “carried them to Missouri, and had there disposed of them, as agent for said Edward Carlton, and had no longer the possession of said two negroes, and did not then know that the plaintiffs had any claim to the said negroes.”

Suppose Pool had failed to pay over the money to Carlton, and that the latter had sued him for it, could he resist a recovery upon the ground that Adldsson and Toote were the right owners of the slaves ? He certainly could not, unless he should be allowed, contrary to the authorities cited, to set up a title in strangers, agaiust his bailor. But concede that he might set up such title, still, if he was as ignorant of it upon the trial, as he was when lie sold the slaves, he could not make such a de-fence against Carlton, and the consequence would be, that Carlton would recover a judgment for the money. How then would matters stand ? Carlton would compel Pool to pay his judgment, which would be no defence against Adkisson and Toote; and they, under the doctrines of the opinion delivered, would thereafter recover of Pool, the value of the slaves and hire for their detention •' Thus Pool is made to pay twice. After he pays Adkis-son and Toote, can he recover the amount oí their judgment from Carlton, in the face of the judgment in Carlton’s favor ? ' Or what remedy shall Pool have for the injustice and ruin which he innocently suffers ? I confess I cannot answer these questions satisfactorily. Pool ought to be redressed; but I leave the form and nature of his action to those who shall place him in the difficulty. I fear, however, that he can have no redress„under the doctrines of the opinion ; for that says, by the “ as-portation and sale of the slaves he did an injury to the plaintiffs, for which they had a right to hold him responsible, in trespass, trover or detinue.” Now, if Pool be a trespasser, he is certainly a joint trespasser with Carlton, and it would be directly in violation of the principle, that one trespasser shall not have contribution from another, to, let Pool recover from Carlton,where they have jointly trespassed on the property of Adkisson and Toote. It should be kept in mind, that the motives of Pool, and his ignorance of the rights of Adkisson and Toote, are not allowed by the opinion to operate in his favor against them. How are they to benefit him when he comes to litigate the matter with Carlton ? But take it that Pool is a separate, and not a joint tortfeasor, can he call upon Carlton to pay him for his own tortious conduct, and thereby take advantage of his own wrong ?

To constitute an injury for which the law gives a remedy to the party aggrieved, there must be, either a violation of a contract, or a tort perpetrated. There is no pretence for contending that Pool has vióláted any contract. There is as little, in my opinion, for saying that he has been guilty of a tort. Carlton had possession of the slaves. The deed of trust which he had executed in Virginia, to the defendants in error, was unknown. Carlton’s possession -was prima facie evidence of a good title. In the absence of all knowledge of the deed of trust, actual or constructive, the law authorized Pool and all others to regard Carlton as the true owner. Was it a tort to receive the possession from him who was the equitable owner, and who, prima facie, held the absolute title ?. I thihk it could not be a tort, for if it was, then the restoration of the possession to Carlton, could not discharge Pool from the action of the right owners, as is clearly proved by the authorities to be the law. The taking possession, from him who was possessed in fact, was, therefore, a lawful act on the part of Pool. If a man finds a runaway slave, or inanimate property, ,it is well settled that he may take the property, and keep it for the true owner. If he can take property which he knows does not belong to him, when he finds it in the actual posses-, sion of no one, but yet in the constructive possession of the right owner ; how is it unlawful for him to take possession of property, which the true owner has lost, from the individual who has it in actual possession ? The only difference in the cases is this, where he finds property not actually possessed by any one, and takes it, he holds as the trustee of the right owner ; but where he receives the property from one actually possessed under a contract of bailment, then he holds for his bailor, and the law binds him to be faithful to his bailor and his title. In either case, the act of taking is lawful, and not tortious.

In torts the quo animo may give character to the transaction, and is an important consideration. If I enter upon the land of A, having lawful business to transact with him, it is no trespass. If I make the same kind of entry without lawful business, it may be a tort. Testing the conduct of Pool by the quo animo, he is guiltless. The law invited him to regard Carlton’s possession as evidence of right. He acted upon the inferences which the law justified him in making, from the facts. I cannot consent that .the law shall set snares, and make victims of those who trust in its presumptions.

The possession of the bailee is not an independent, adverse possession It is the possession of the bailor. In regard to real estate, it has been over and over again settled, that the possession of the tenant is the possession of his landlord. There is as much reason for applying this doctrine to chattels, between bailor and bailee, as to lands. If a thief requests me to hold the bridle upon a stolen horse, until he warms his fingers, or takes a drink, will I thereby become possessed of the brute, and incur a liability to the true owner for its value ? If, as auctioneer, I should ride the horse up and down the street, cry him for sale, knock him off to the highest bidder, receive the cash and pay it over to the thief, deducting a commission, do I thereby make myself responsible to the true owner, of whose rights I am altogether ignorant ?

In these, and all similar cases, I look upon, the possession of the bailee, agent, or servant, as the possession of the bailor, principal, or master. Their title is identical, except that the bailee &c. hold in subordination to him from whom the possession is received. The possession in fact may be changed, but the possession in law remains the same, and continues with the bailor &c.

If the tenant of the freehold pays rent to his landlord during his occupancy, and then leaves the premises, restoring the possession to the landlord, who is thereafter evicted, I deny that the successful claimant can have his action against the tenant for the mesne profits. The reason is, that the tenant paid his rents in discharge of a contract which legally bound him, and having done so, cannot be again charged for the same thing. The same rule should apply to the bailee who honestly performs his contract in respect to a chattel.

If Pool did not act tortiously in lalcing the slaves, he is not liable, unless he thereafter acted tortiously, in converting or disposing of them. I will now endeavor to shew, that he has not acted tortiously after the slaves were put into his hands. If the taking, or reception, was lawful, when did the tort thereafter commence? Was it when he carried the slaves across the state line into Missouri ? If he had carried them to Virginia and delivered them to the defendants in error, would such removal from. Kentucky have been tortious ? I can perceive nothing more1 in the removal of the slaves out of the state, than there is in removing them from one farm to another in the same county. But perhaps it is the sale made by Pool, that constitutes the tort. If he had not sold them he would have violated his contract with Carlton, and could not avoid paying damages to him for the breach, unless he could resist by shewing the paramount title of the defendants in error,which, as we have alreadyseen, he could not do. If the sale makes the tort, and renders him liable to Adkisson and Toote, the dilemma may result in his ruin, and there is no escape. I hold that the sale is not tortious on the part of Pool. It was not his act, but the act of his employer Carlton. As the agent merely, Pool was bound to transact the business in the name of his principal. If he did so, the purchaser could look to Carlton only, and Pool would incur no personal liability to him. Upon what principle is it, that he incurs a personal liability to the right owner, whose title is unknown ? if there be any principle which creates such liability, it must be found in the conversion of the property to the use of Carlton, or to his own use. I will endeavor to shew that Pool has clone neither of these thirígs.

First. He did not convert the property to Carlton’s use, for Carlton had done that himself, by illegally removing the slaves from Virginia, and by the very act of employing Pool to take them off and sell them for him. Unless, therefore, a man by employing a dozen agents, ¡after he has fully converted property to his use, may haveit twelve times re-converted to his use, by the action of these different agents, Pool has been guilty of no wrong in converting the slaves to Carlton’s use. A conversion once complete, cannot be made more wrong, or be changed into new and distinct causes of action for every use of the property inconsistent with the right of'the true owner. -If I convert the ox of my neighbor to my rise, and thereafter, I employ a driver to work him for me, or a butcher to slaughter him, these agents commit no new offence. I had fully converted the property to my use before they had any thing to do with it, and nothing which they can do will add to the tort which I have already fully consummated. It might as well be said, that every time a man rides a horse which he has illegally converted to his use, that he thereby commits a a new and distinct offence, for which a separate action of trover might be maintained against him, as to contend that if he lends the horse to A, hires him to B, and employs C, D and E to work him, that they are all new tortfeasors, and liable to the right owner for the value of the horse. I regard the persons who thus use the property under authority from the individual who has converted it, as in no w'ay partakers of the original wrong, unless they know that, their bailor is trespassing on the rights of another. It is certain, that in point of morality, they are not guilty. Why then make them guilty under the law ?

Secondly. Pool has not converted the property to his own use. There Is no evidence that he made any profit by the use of it; or that he attempted to do so; or that he claimed the slaves as his own; or that he assumed upon himself any right to control the slaves, except as the agent of Carlton» When a man thus disclaims all right in himself, and is, in good faith, acting for another, from whom he received the possession, there is no pre-tence for alleging that he converts the property to his own use. A son under age cannot excuse himself from a tort, upon the ground that he acted in obedience to the commands of his father. If the father toriiously takes a horse, and leads the horse to his house, and directs his infant son to feed and work t.he horse, and he obeys, does he thereby become a tortfeasor, and liable to the true owner in trespass or trover ? I think not.

The opinion delivered, looking upon Carlton as having no right to the slaves, says, u he who has no legal right to do a thing, cannot delegate authority to another to do it. The power of an agent, being altogether derivative, cannot exceed that of his principal,” &c. &c. These obvious truths, in my opinion, have no application to the present case. I am nót contending that Carlton could give powers which he could not himself exercise. I know that Pool cannot set up a license from Carlton to justify him in doing wrong. -The error of the opinion consists, I think, in confounding or uniting Carlton and Pool, and making the latter guilty because the former is. My effort has been to take a distinction between them, If there be none, I admit that Pool is guilty. Carlton did not pretend to delegate power to Pool, authorizing him to sell the negroes of Adkisson and Toote, or to carry their slaves out of the state. If the letter of attorney had shewn sucli objects upon its face, Pool, knowing the law, must have known, that it could not authorize him to do such acts. Carlton’s power of attorney purported (we must presume it was formally executed,) to authorize Pool to sell Carlton’s slaves. Now, if Carlton delivered slaves belonging to the defendants in error, to be sold as his, under such a power, I admit that the power would not enable Pool to pass the title of Adkisson and Toote. Why ? Because Carlton could not do it himself, and hence, could not create an agent whose powers exceeded his own. But it does not follow from the law, which restricts the agent to the same powers his principal possesses, that if the principal commits a trespass, or tort, in taking property from the true owner, that the agent is equally guilty, if he innocently receive the property as bailee from the principal. I cannot apply the old adage, that the receiver is as bail as the thief, unless the receiver knows of the theft. It is making the bailee who neither aids nor abets, nor attempts to conceal, answerable as accessary, or as co-principal, for wrongs which never entered into his contemplation.

The best definition of bailment which I have found, is in Jacobs’ Law Dictionary. Leaving out the addition, to it of Sir William Jones, it is, a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee.” — I find nothing said about the bailee being a tortfeasor, if the bailor is. On the contrary, the very definition shews, that the bailee is bound to perform his trust. If the contract is entered into by the bailee in good faith, the law which authorizes him to enter into the contract, protects him in the faithful execution of it. Pool’s justification is, there, fore, derived from the law, and does not at all depend on any authority derived from Carlton. If a court- of chancery appoints a trustee (a mere bailee,) and directs him to'seil property, supposed to belong to the litigants, but which does not, and they deliver it to him, and he sells it, is he responsible to the true owner as a trespasser, or for the conversion ? Why shall the chancellor’s agent be more favored than the agent of a private individual? The law equally authorized them to assume the trust confided to them, and each acted voluntarily in undertaking to perform.

I am willing to admit, as a general proposition, that where the conduct or acts of a man produce a loss or destruction of property, he is liable to answer in damages to the party aggrieved. But there are many cases,where the person, who, directly and immediately, by his acts, inflicts the deepest wounds which life, liberty and property can sustain, is not responsible to the sufferer. The ministerial acts of the officers of the law are of this description. The sheriff who imprisons the body, or strips a man of all his property, is not responsible, if it should tum out to be a malicious prosecution. The judge may erroneously deprive a man of his liberty or his proper» ty, and yet there may be no redress, but if executive, or judicial officers act corruptly, and knowingly abuse p0werg} to the injury of any one, then the law will charge them with- the consequences, and afford a remedy against them. I may employ a man to transact my busi* ness, and leave him to his own judgment in performing it. His conduct may involve me in losses, even to bank» rupfcy, and still I may not be entitled to redress.' If he acted in good faith, I must bear the loss. The law does not sanction the idea, without exception, that every loss brought upon us by the conduct of others, is an injury. The law says, there is such a tiling as damnum absque injuria,. It is not sufficient to convict Pool of a tort, to shew only that Adkisson and Toote sustained a loss from his conduct.

Í concede that, if Pool had made an absolute purchase of the slaves, and had sold them on his own account, he would have been answerable to the true owners. The reasons for liability in such a case, are very obvious. Every man who purchases property and takes possession, thereby converts it to his own use. His possession is, thenceforth, adverse to all the world. If the purchase be of a chattel, there is a warranty of title, resulting from the mere act of selling, and the purchaser takes the thing, subject to the claims of others who may have bet. ter right, relying on the warranty for indemnity against paramount titles. The case is very different here. Pool made no purchase, did not convert the property, did not hold adversely, and did not accept the slaves under any warranty.

Starkie, Vol. 3. 1494, says, that, “in general, evidence of some tortious act is essential to a conversion.” In page 1497, he says, “ this proof (to-wit, a demand and refusal) is always necessary where the goods came lawfully into the defendant’s possession, as by finding, or upon bailment, or delivery of the owner; but it is unnecessary where a tortious taking of the goods can be proved.” The inference to be drawn from the text, is very strong, that every reception of goods in good faith by a bailee, from the possessor, is la.wful. To make it tortious .a demand and refusal must be proved. Every refusal will not convert the lawful possession into a tort. Starkie, 1499. When the bailee has restored the possession, or performed his trust by parting with the property, he cannot comply with the demand ; and hence no presumption can arise from his refusal, that he has converted the property. It may be proved, that he has not, as in this case, by shewing the manner in which the trust has been discharged. If the bailee-lias been guilty of no tort up to the time of the demand, it seems to me to be impossible to make him a tortfeasor for failing to comply with the demand, when his inability results from, the punctual and faithful performance of his contract before notice of any adverse claim. If there be a conversion, it can only be in those cases where the bailee used the property while he possessed it, and made profit out of it. In these cases, after he has restored the property, the conversion, at most, can only be •partial, and the bailee should, in no event, be required to account to the true owner for more than the value of the service of the slaves, or the horse, for the hour, or the day. I do not admit .he would be accountable for that, because he intended no wrong ; because the law authorized him to presume the bailor had title; because he came lawfully into possession, under a contract of bailment, and only used the property as stipulated for, in the contract, and because his acts as bailee are the acts of the bailor. In cases of hiring, the bailee pays an equivalent to the bailor for the service. What difference can it make to the right owner, whether his slave worked for the tortious bailor, or innocent bailee ? If the bailee did not hire the slave, the bailor would keep him at work : how then has the bailee injured the right owner ?

The opinion delivered seems to regard the motives and intentions of the bailee as matters not to be considered^ In the case of Kennet vs. Robinson, (2 J. J. Mar. 87,) motives were directly considered, and much stress put upon them. There is a long quotation from Lord Ellenborough, made for no other purpose than to shew, that where the motive is charitable and kind, and there was “ no intention to injure the property, or to convert it to the use of the taker,” it could not be deemed an “illegal conversion.” That case fully recognises the doctrine quoted from Starkie, and it decides that the use of the horse (“ Old Jolly,”) and lending and hiring him under the bailment, was not an illegal conversion. It is as proper, in my opinion, to consider the motives of a bailee, as to regard the motives of a kind nurse, who, under the directions of a murderous physician, administers arsenic, for calomel. The nurse is innocent: the physician is a murderer.

The opinion delivered concedes, that the doctrine for which I contend, is correct so far as it concerns innkeepers ; because as is said, “it was the innkeeper’s duty to receive the guest and the horse which he rode, and to-furnish shelter and food to both the man and the beast, if required to do so.” If the law did not enjoin this duty, then we must infer from the l’eason assigned, that' the innkeeper would be liable. Take the case ihen of a private hospitable country gentleman : Shall his hospitality be the cause of compelling him to pay for every horse, which tortious knaves may find means to introduce into his stables ? Is the owner of every stallion in the country, now extensively engaged in breeding and raising horses, responsible to the true owner for the value of eveiy mare bailed to him, and which the bailor may not own ? 1 deny that an innkeeper is under any ob ligation to receive and entertain a thief and the horse he rides, knowing hinr to be such. With such knowledge, it is the innkeeper’s duty to put the thief in jail, and secure the horse for the owner, by instituting proper legal proceedings. But conceding that it was his duty to receive and entertain those who are not known to, be guilty of crimes, and who yet introduce a stolen horse, which the innkeeper feeds, then according to the opinion delivered, if the innkeeper “detain the horse for his bill, and thus exercise dominion or proprietorship ” he is liable to the true owner 41 in trespass, trover or detinue, according to circumstances.” This is not the law, if Bacon can be trusted. He says (Title Inns and Innkeepers, D.) d If A injuriously take away the horse of B, and put him Into an inn to be kept, and B come and demand him, he shall not have him until he hath satisfied the innkeeper for his meat.” Yel. 67. 3 Buls. 269, 270. 2 Rol. Ab. 85. Poph. 128, 179, and 2 Lord Raym. 867, are cited. I think the law as laid down in Bacon better comports with reason and good policy than the position assumed in the opinion delivered. ' It shews clearly that there may be at least one case, where the bailee coming into possesssion under a tortious bailor, may acquire rights which his bailor did not possess, and that he does not stand upon the same footing with the bailor in respect to the right owner.

Paley on Agency, 317, speaking of an attorney at law, says : “ Even if he sues for a debt which he knows to be released, and was himself witness to the release, yet it has been held that no action lies against him.” Here is a case where tire agent knowingly assists in the perpetration of a wrong, and yet, from considerations of public policy in regard to a useful profession, his acts are only considered as the acts of his client. I should be avers'e to sanction a principle which lets the designing, knowing perpetrator of a wrong' escape. But, surely* if a .lawyer may bide himself under-his client’s cloak, when he acted .with full knowledge, an innocent agent, after performing his trust in good faith, may say to the injured party, “it is my principal, and not me, that has wronged you.”

The opinion delivered puts this case: “A tells B to shoot a horse, asserting that ifrhis. B kills the horse, which turns out to be the .property of C. May not C recover from B, as a trespasser.?” The case-put is not. distinctly stated, in such manner as to enable me to say on which side the line it is, that I have kept in view in forming my opinion. If A was not in possession of the horse,T admit that JB would be. a trespasser on the rights of C. In that case, the law would apply which discountenances the idea of allowing a man to confer a right on liis agent, to do a thing which he could not do himself, 'and the agent at-his peril would meddle with property not possessed by his principal. But if the horse was in A’s possession, if he had converted the horse to his use, anti then told B to shoot him, because the horse wa's crippled and would speedily die in all probability, and B did so to end his pain, I should decide that B was no trespasser. By the conversion, A’s possession is adverse j0 jps an¿ cannot complain of those who innocently, and from good motives, do no more than what the possessor directs. Suppose a farmer calls on his neighbor to assist him in killing his pork, and the neighbor butchers a hog found in the pen, not owned by the farmer, but which he has fraudulently converted before that time — who shall pay the right owner ? I think the farmer alone is bound.

The opinion puts the case of a sheriff who levies an execution, at the request of the plaintiff and defendant, on the property of a stranger in the defendant’s possession, and asks if the stranger may not recover from the sheriff in trespass or trover ? I answer, that the sheriff’s authority, in the execution of his official duty, is derived altogether from the law, and cannot be enlarged by attempts, on the part of individuals, to confer authority upon him. Under- the law, he levies executions at his peril, and the law gives him no authority to take the property of any one but the execution defendant. The taking is never in the character of bailee ; his possession of goods when taken is not subordinate ; is not the possession of another ; it is all his own ; and if he performs acts which are without legal sanction, as he is bound to act upon his own judgment, he will not be excused by setting up authority from individuals, in opposition to his powers derived from his official station. Were Í to concede the liability of the sheriff in the case stated, I could perceive no analogy in it to the case of Pool. But if it could be shewn that the sheriff had a right to throw of his official character, and to become the private agent in the transaction, of the plaintiff and defendant in the execution, to sell property which the defendant had con. verted to his use, but which rightfully belonged to another, and to pay over the proceeds of the sale to the plaintiff, and that he performed his trust in good faith, without knowledge of the stranger’s rights, I am of opinion that he would neither be responsible in trespass, trover or any other action. The case would then be Eke that of Pool- '

The doctrine of the books, which in general subjects the servant, Or agent, to damages, as a tortfeasor^ when act-in'i; under the command of the master, or principal, applies to those cases only where the law puts the servant, or agent, on his guard, and enables him to ascertain, by inqnirv, whether he can act with safety in obeying the command. It never ought to apply, and I have seen no adjudged case where it was made to apply, to the conduct of a servant, or agent, who, bona fide, received the goods from the possession of the master, or principal, and disposed of them according to orders.

I shall hasten to the termination of a dissent already tedious, by noticing the decisions referred to in the opinion delivered.

The case of Rex vs. Almon, 5 Bur. 2687, throws no light on tile subject. It was a conviction for publishing a libel. The question was whether a sale of the pamphlet, in the defendant’s shop, by his servant, was prima fa-cie evidence of the defendant’s guilt. The court decided that it was. If the prosecution had been against the agent, or servant, perhaps the judges might have said something bearing on this case.

Bristol vs. Burt, 7 Johnson, 254, was an action of trover, brought to 'recover ninety five barrels of pot ashes, which Burt, as collector of the port of Oswego, under pretence of preventing a violation of the embargo act, undertook to control, by employing armed men to guard the property, and prevent the plaintiff and owner from removing it. The court correctly determined that the dominion thus assumed amounted to a tortious conversion. The defendant’s conduct invaded, and was alto, gether inconsistent with, the plaintiff’s right of property and possession, and he knew it.

Shotwell vs. Few, 7 Johnson, 302, was an attempt by Few, as inspector of a prison, to detain the goods of Shotwell, against light and knowledge, under pretence of a lien on them, to secure a debt due the institution. -

Murray vs. Burling, 10 Johnson, 172, was a breach of trust and a fraud practised by the defendant, in converting the plaintiff’s property, to wit, a note of hand'deli v-* ered to the defendant, to enable him to raise money for the plaintiff’s use.

The case in 1 Wilson, 328, is this. On the 22d September, 1749, Hughes became a bankrupt. On the 23d of September, 1749, Smith, the defendant, the servant and riding clerk of Garroway, to whom the bankrupt was considerably indebted, went to the bankrupt’s shop to try to get his master’s money, and found it shut up. The bankrupt delivered to Smith the goods, who receipted for them In his master’s name, and sold the same for his master’s use. The assignees of the bankrupt sued Smith, in trover, for the goods, and recovered. It was objected, that they should not recover against Smith, because he was servant, and acted wholly for his master. Lee C. J. said: “ The point is, whether the defendant is not a tort-feasor', for if he is so, no authority that he can derive from his master, can excuse him from being liable in this action.” He then proceeds to shew, and I think correctly, that Smith was a tortfeasor. Smith took the goods from the bankrupt, knowing his bankruptcy, and it does not appear from the case as reported, that his master gave him any authority to receive the goods, or to sell them. He therefore, acted upon his own judgment and responsibility, and was the mover in the wrong. If his master had converted the goods, by receiving them from the bankrupt, and Smith had without knowledge of it, as the clerk and agent, sold them to his master’s customers, I think it would have presented a case- entirely different, and analogous to the present.

The post-revolutionary cases decided by Lord Ellen-borough, whose opinions are copied, are to this effect : Deane purchased goods from the bankrupts for Heath-cote, who was in America. Deane gave information to Elwall, the clerk, of Heathcote, of the purchase, on the day it was made. The goods were afterwards delivered to the defendant, Elwall, and he disposed of them by sending them to America, to Heathcote. Stephens &c. assignees of the bankrupts, recovered in trover against Elwall. His lordship speaks about the clerk acting under “an unavoidable ignorance, and for his master’s benefit,” and still convicts Elwall of a tortious conversion» Bijt of what lie was unavoidably ignorant, which should cut any figure in the cause, I cannot learn from the facts reported. It does appear that Elwall was told of the purchase by Deane, on the day it was made, and it d'oes not appear that Deane delivered the goods to' Elwall. He may have received them from the bankrupts, and it is not probable that Deane failed to tell him from whom the goods had been purchased. Be these things, however, as they may, it is certain that the case is very unlike the present. Heathcote, the master, was in America ; never had possession of the goods, and gave no directions áboüt them. If a man sends an agent out in the world to purchase goods tor him, and gives no other instructions, the agent’s authority is limited to obtaining such goods as the vendor may lawfully sell, and if the agent receives any other kind, he does it at his peril. I see no resemblance,in the cases. The other case, to-wit, McCombie vs. Davies, in 6 Blast, 538, bears no-analogy to the present. There Coddan purchased tobacco for Mc-Combie, and afterwards pledged it to Davies, for an advance of money. Davies refused to surrender it to Mc-Combie, unless he would pay the money advanced; and set up a lien under the, assignment of Coddan. Eiien-borough C. J. convicted Davies of a conversion, very properly, upon the authority of the case of Baldwin vs. Cole, 6 Mod. 212.

' The words, that, “ he who assumes upon himself right of disposing of another’s gopds ” is guilty of a conversion, were first used by Holt G. J. in the case of B.aldioin vs. Cole. The facts of that case were these: “A carpenter sent his servant to work at the Queen’s yard for hire, and having been there some time,when he would go no more, the surveyor of the work would not let him have his tools, pretending a usage to detain tools to enforce workmen to continue till the Queen’s work was done.” Holt said, “ the very denial of goods to him that hath a right to demand them, is an actual conversion; for what is a conversion but an assuming upon onesself the property, and right of disposing, another’s goods.” I apprehend that the learned judge never contemplated applying his expressions to the cáse of a bailee who had Honestly performed his engagement.

The facts of- the case of Parker vs. Godin, 2 Strange 813, are, “ Satur, a bankrupt, at the time of his going off, left some plate with his wife, who in order to raise money upon it, delivered it to her servant, who went along with the defendant to the door of Mr. Woodward, the banker, and there the defendant took the plate into his hands, and went into the shop and pawned it in his own name, gave his own note to repay the money, and immediately upon the receipt of it, went-back to the bankrupt’s wife and delivered the money to her.” To my mind there never was'a clearer case of tortious conversion than this. Godin, with full knowledge of all the facts, for he started from the house with the servant and went back to it, converted the plate to his own use. How he appropriated the money after he got it, was immaterial. He pawned the plate as his own.

The facts of the cases explain the general declarations of the judges and elementary writers. The present case, in my opinion, is unlike those which are referred to in point of fact, and therefore, I cannot admit the propriety of applying expressions used in reference to facts of a different nature, to the circumstances attending the bailment in the present case.

Ignorance of the law will excuse no one. This principle results from political necessity. But ignorance'of facts in many cases will furnish a complete shield to a defendant who would not be otherwise protected. Thus if a purchaser of land knows of a subsisting equity at the time of his purchase, he will be compelled to surrender his legal title; if he had no- such knowledge, and be a purchaser in good faith, he may retain the title. All the doctrines of notice, w'hich embrace a variety of heads, are based upon the idea that many of our most important-rights depend upon our knowledge, or our ignorance of facts.

Comyn on Contracts, 1 Vol. 243, shews that ignorance on the part of the vendee of the character of the factor, may make a difference in favor of the vendee. It is laid down in note (i,) Paley on Agency, 315, that “if the master lock a man into his house, and deliver the key to his servant, if the servant be ignorant- that any body be there, he is not chargeable ; but if he knew that the master had imprisoned one tortiously, and he still kept him in prison, he is .liable to an action. This is a striking case to illustrate the difference between acting ignorantly, and knowingly. The same note cites Rol. Ab. 95, to shew that a servant who sells wine that is corrupted, knowing it to be so, is not liable, merely because he did it as a servant. A note in page 316, Paley on Agency, refers to the case of Mires vs. Solebay, 2 Mod. 242, where it is said to have been expressly decided, that trover would not lie against a servant for an unlawful intermeddling with the goods of another by command of his master, unless it amount to a trespass. I have not examined the facts of the case, but the principle established by it shews, in opposition to the doctrines of the opinion, that the servant and master stand on different ground. I have not had access to Roll’s Abridgement, and could not examine the references the opinion makes to it. An agent who receives money through mistake, and pays it over before knowledge, or notice, of the mistake, is not answerable. If he pays it over after notice, he is. 1 Comyn on Contracts, 250. So that I find no doctrine of the law better established than that which makes the knowledge or ignorance of facts, the essential point upon which important rights depend. My brethren have refused to inquire into the motives, or the extent of Pool’s knowledge. J think the inquiry would have been important, connected with the other facts, in his behalf.

The note (1) in 2 Saunders, 47, contains a reference to many cases, shewing what will amount to a conversion. The cases in 1 Wils. 328, 2 Stra. 813, and 6 Mod. 212, are there referred to, and the principles extracted from them by Williams, meet my approbation, and do ndt, conflict, I think, with the views I have taken of this case, indeed, I find in that note a strong confirmation of my opinion. It is there said : “Another ingredient of this action is, that there should be a conversion by the defendant ; as to which it is a common learning that where the goods come into the defendant’s possession by delivery or finding, the plaintiff must demand them, and the defendant refuse to deliver them up, in order to constitute a conversion ; ” and he cites 1 Sid. 264, and Bull. N. I. 44. Buller says, if the goods come to the defendant’s hands, uby delivery, finding, or bailment, an actual demand and refusal.' ought to be proved.” And Williams says, in the aforesaid note, that a “demand and refusal is no evidence of a conversion ih the case of a carrier, or wharfinger, where the goods are proved to have been lost through negligence, or stolen, and therefore trover does not lie, though the owner may have an action upon the caseand he cites many authorities. Why is the refusal in such a case no evidence of conversion? I answer, because the carrier, or wharfinger, has it not in his power to deliver the goods, at the time of the demand. So here, Pool’s refusal to deliver the slaves after he had parted with them, according to the bailment, cannot amount to evidence of a conversion. And if, as the books say, Pool came to the possession by “ de~ livery or bailment,” as he unquestionably did, he was not guilty of a conversion before demand and refusal; and as refusal to deliver, when he could not, is no evidence of conversion, there has been a total failure to establish any thing like a tort against him.

The importance of the doctrine, which the opinion delivered tends to settle, has induced me to suggest many fictitious cases for the purpose of testing its operation. I have endeavored to avoid misconception, or misapplication of its principles to the supposed cases. If, however, I have erred, I have the consolation, that the opinion contains an “ exclusion of a conclusion,” in reference to the cases which may hereafter come up, and it will be then proper in the present'members of the bench, or our successors, to review this case, in deciding how far it shall be the rule to govern others.

Believing that Pool is not responsible in any form of action, I have not considered the question as to the propriety of the remedy.

I think the instruction which the court refused to give was applicable to the facts proved, and ought to have been given.  