
    
      M’NEIL & AL. vs. COLEMAN.
    
    East’n District.
    
      July, 1820.
    Whether a sale by a common carrier, vest the property of the goods ?
    If the defendant relies on special pleas alone, there is no need of any proof or the allegation in the petition.
    Appeal from the court of the first district.
    
      Eustis, for the plaintiff.
    This is an action of revendication, for the recovery of thirteen bales of cotton, which the plaintiffs claim as consignees, for the benefit of their principal, W. King of Mississippi.
    They aver that, on the third of April last, the cotton was shipped on board of a boat, of which one Crawford was master, to be transported to New-Orleans ; that it was shipped as the property of King by Fisk & M’Neil, the consignors ; that Crawford was a common carrier ; and that the defendant has unlawfully taken possession of, and refuses to deliver it.
    
      The answer contains no general denial of the allegations of the petition ; but sets forth, that the defendant purchased the cotton for a valuable consideration, in market overt ; that it is his property and not the property of King ; and that there was no consideration given by King to Crawford.
    Our statute requires that defendants shall answer, without evasion, every material fact stated in the plaintiff’s petition. 2 Martin’s Digest, 154. Our practice has been, and the construction of the statute warrants it, that all these allegations, which are not answered without evasion, shall be taken pro confesso.
    We have then the following facts which are established by the defendant’s admission :
    That the bill of lading, annexed to the petition, is that which was given by Crawford for the latter.
    That Crawford was a common carrier.
    The fact of the shipment and consignment to the plaintiffs.
    The counsel for the defendant has rested his principal defence, on a supposed deficiency in our proof, with regard to the property being vested in the individual, for whose benefit this suit is instituted, unless it appears that the right of property is in him. Let it be admitted, for the sake of argument only, that the plaintiffs cannot recover.
    Fisk and M'Neil, of Natchez, commission merchants, were the factors of King, and consigned the thirteen bales of cotton to their friends in New Orleans, M’Neil, Fisk & co. as the property of Wm. King. This is proved by the affidavit of Lessassier, one of the partners of the latter house, and by the testimony of Sebbins Fisk, a witness for the plaintiffs, who derives his knowledge from the letters of the consignors to the consignees. When one merchant ships goods to another and informs him by letter, that they do not belong to him, but are the property of some one else, the consignee holds the goods for his benefit, and the principal is in possession of them, by the interposition of his agent. Tit. de adquirenda amittenda possessione, ff. 41. 2. 1. § 20. Commentary of Cujas quoted 7 Marlin, 60.
    The letters accompanying consignments are conclusive evidence of the property, as it regards the consignee ; he knows no one else, in his transactions, but the person whose property he has in his possession. The bill of lading shews for whom the carrier, Crawford, possessed ; as that instrument is not denied, full effect must be given to its contents ; and it imports that the cotton was to be delivered at New-Orleans to the consignees, who would have held it subject to the instructions they had received from the consignors at Natchez, as the property of Wm. King.
    So that it appears that the possession of Wm. King was maintained by him, through the interposition of his agents, until it was divested by the tortious conversion of the carrier.
    It is sufficient for the plaintiffs to shew, that the cotton was lawfully in the possession of the agents of King, before it came into the possession of the defendant. The fact of previous possession, on their part, established as it is by testimony and by the admission of the defendant, would entitle them to recover the possession against the defendant, who is proved to have acquired the actual seizin of the cotton under the strongest circumstances of suspicion. It is proved and admitted that he knew the character of Crawford : they were seen frequently together in company ; it is not denied that he was a common carrier. The men, engaged in transporting the cotton from the boat to Rust’s house, had been previously arrested by the marshal of the United States ; and the people, who were in the habit of being about the house may have done them and Crawford injustice, in supposing they were all concerned in an unlawful enterprize ; nevertheless, such was the report and understanding.
    The house, to which he brought the cotton, was the last place in the city in which a person, unless he wished to escape the observation of merchants and persons who would be apt to recognize him, would have thought of storing cotton. The character of the house and its visitors is fully explained in the evidence, and we cannot hesitate, for a moment, in believing, with one of the witnesses, that no cotton has been brought there before or since the present parcel. The circumstance of the defendant’s applying to the proprietor of the house in the night, for the storage of the cotton, and the general sentiment of the by-standers, ought to induce the opinion, that the possession was not such as to form the basis of a title to the property. Melius est nullum titulum habere, quam vitiosum.
    
    The defendant has not pretended to prove, in what manner and under what circumstances, the cotton came into his possession. He has averred that he bought it in open market ; he has not proved it. He relies on his simple possession, which we have shewn to be tortious, and acquired from a person who had no right to divest himself of it, to the prejudice of the owner.
    
      The right of consignees, to property consigned to them, is very fully explained in the argument of justice Buller, before the house of lords, in the case of Leckborrow vs. Mason, reported in 6 East, 72, to which I beg leave to refer the court, in order to shew that no person had any right to transfer the property claimed in this case, except the consignees, M'Neil, Fisk & co.
    But, if we had no proof of the property being vested in King, by the defendant’s answer alone, we contend, that we should be entitled to recover.
    The general issue is not pleaded ; the allegations of the petition are not denied, but a special defence is set up against our demand, of a purchase for a valuable consideration in market overt ; which the defendant has not deemed material, to support by testimony. On the face of the pleadings, we should have prevailed, without the aid of testimony ; the bill of lading, which is the title of property, being admitted, or taken as confessed (it not being denied by the defendant) and the plea of the want of consideration between King and Crawford, not being substantiated, judgment for the plaintiffs ought to have followed of course.
    The defendant says, in his answer, “ that no consideration was ever paid by the said King, to the said Crawford, for the said cotton ; that the same was fraudulent, as between the said two parties.”
    Is this not an express recognition of the existence of a contract between these parties ; and what contract can be alluded to, except the contract of affreightment ? There is no other averred in the petition ; none other stated in the answer, between King and Crawford.
    It admits then, that King was a party to the contract made with Crawford for the transportation, that there was an obligation on the part of King to pay Crawford, which it is averred he has not done. On what was this obligation founded, we ask, unless on his being the owner of the cotton, and, as such, bound to pay the carrier for its transportation ? Such was the fact: King contracted through his agents, Fisk and M'Neil with Crawford the carrier, for the transportation of the cotton. The defendant has pleaded that this contract was in fraud and without consideration ; but has proved neither.
    A plaintiff in his action on a written contract, if it be not denied, and if the want of consideration and fraud are pleaded, is surely not obliged to prove the execution. This would not be required in any court of justice, for suggestio 
      
      unius confessio alterius est. So, in the present case, the defendant will not be permitted to say that the contract of affreightment was not made with King, nor to deny that the person, with whom Crawford contracted, was not the owner of the cotton, or had such an interest therein, as would authorise him to contract for its transportation, and to reclaim it from the possession of any person, unless it was bought for a bona fide consideration from the consignees.
    But, how happens it, we ask, that the defendant knew of this fraud and want of consideration between the carrier and the owner? Was he informed of this, when he bought the cotton, if he ever can be supposed to have bought it ? Did he know that the carrier contracted with King for the transportation of the cotton, and will he pretend that he has a better right to it, than King ?
    The possession of Coleman was not of such a nature as to form the basis of a title to the property, to enable him to retain it against him who was in possession prior to its being delivered to the defendant by Crawford. Domat, 7, 3, § 7.
    
    It was acquired from a person, who had no right to deliver it or to dispose of it, in any manner, to the prejudice of his principal, who received it under a contract of bailment which, from the character of Crawford, must have been known to the defendant, who could not have been ignorant of the inability of a common carrier to convey any property, in the goods entrusted to his care, by a sale, to a third person.
    
      Une quatriéme espece de vice ou defant, dans les possessions est celle qui resulte de l'inhabilitè du titre dont elle procède á transferer la proprieté. Pot. traité de la possession, no. 20.
    A possessor de manvaise foi is he who possesses, with a knowlege that he has no title or of the defects of the title. Domat, 7, 1, § 1.
    “ These, also, are considered as possessors in bad faith, who, foreseeing that the right they pretend to have will be contested, and that they will be prevented from taking possession, take some occasion to obtain it by stealth, without the knowledge of those who have a right to oust them.” Ib. 12.
    
    The different consequences and rights which possession gives to them who hold in good or in bad faith are explained in Domat, 7, 3, 7.
    From these authorities, and from the evidence of the plaintiffs, the conclusion is irresistible, that, the defendant cannot retain possession of the property to the prejudice of the party, from whom the carrier received it.
    
      The case of Mitchell vs. Comyns, 1 Martin, 133, resembles, in very many respects, the present. The answer there did not deny any of the allegations of the petition, but set up a claim to the slave (which was the property sued for) grounded on a contract of sale, which, it was contended, was made in market overt. The sale was not proved to have been made in market overt ; no evidence was adduced by the plaintiff ; nothing was brought forward to establish his claim to the property, except the affidavit of his agent, and on the defendant’s failing to establish his defence, judgment was entered for the plaintiff.
    The case, now before the court, is much stronger than that just cited. No proof of property was there adduced by the plaintiff ; but, in this case, we have an implied acknowlegment of it by the defendant, supported by testimony, which is incontrovertible.
    In the opinion of judge Derbigny, pronounced in the case of M'Neil vs. Thompson, 5 Martin, 561, in which one person sued in behalf of another, will be found the law on the subject of nominal and real plaintiffs. The learned judge there intimates, that the declaration of one person, that he sues for the use of another amounts to a relinquishment of the rights of the former to the latter, and in that case, he ruled that it was sufficient to enable the individual, in whose favour the relinquishiment was made, to appear as plaintiff.
    But there is another allegation in our petition which is very material and is not denied or controverted by the defendant. We aver, that we, as consignees of the cotton, have the right to sue for the same, for the use of the said King. Thus it is admitted, that we have a right to sue on behalf of our principal ; that we are his agents ; and we have declared in the affidavit, on which the order of sequestration was issued, that, though we were the consignees and had a beneficial interest therein, that our principal, W. King, was the proprietor of the cotton.
    The district judge has predicated his judgment, on what he thought to be the custom. It is sufficient to observe, in answer to this, that no such custom was pleaded or proved. Customs can have no effect in suits, unless they have been heretofore established by judicial decision, or are proved by testimony. 1 Blackstone’s Commentary, 76.
    The law under which we claim is so well settled, that it would be useless to urge arguments in its support. The following are a few of the authorities, to which the court is referred. Domat, 
      
      supplement, 3, 8, § 10. Merlin, Repertoir de Jurisprudence. Verbo Vol. Jurisprudence du Code Civil. Commentary on the article in the civil code relating to stolen goods, 1 Livermore on Agency, 123, 172. 177, 2d vol. 225, 6, 8 Massachusetts Term Reports, 518, which contain a mass of decisions of the English courts to the same effect.
    
      Ripley, for the defendant.
    In this case, there can be no room, as appears to me, for doubt. The defendant had in his possession thirteen bales of cotton, which he had fairly purchased. The plaintiffs claim them. To their demand, the defendant files an answer, in the nature of double pleading.
    The first allegation in the answer is, that the thirteen bales of cotton, mentioned in the plaintiffs’ petition, were sold to him in market overt, and that the said cotton is lawfully the property of him, the said Coleman.
    The second, that said King never had paid Crawford any consideration, for the said cotton, and that the transaction was fraudulent.
    Either of these allegations, if true, is sufficient to bar the plaintiff’s title to the cotton.
    The proof of the cotton being lawfully the property is possession. The defendant is bound to prove nothing else, until a color of title is set up. This allegation, that the defendant had a lawful title, puts the plaintiff upon his proof of a paramount one. Let us see what that proof amounts to, in the present case.
    Crawford’s bill of lading is not proved, nor is it even proved that King had the property in his possession. The only attempt at proof is in a letter from M’Neil & Fisk, of Natchez, stating that they would ship cotton to the house in New-Orleans. This testimony amounts to no legal proof, for it is the letter of the plaintiffs on record. If M’Neil & Fisk could be witnesses, their depositions ought to be taken. If they cannot be, it is not competent to read their letters in evidence.
    Again, even the letter is not produced ; but its contents are testified to. This is violating all the rules of evidence.
    By averring that the legal property was in us, we have made a general denial of all the allegations in the plaintiffs’ petition. If to an action on a note of hand, the defendant answers he owes nothing, it is incumbent on the plaintiff to prove the execution of the note. If, in an action of trover, the defendant pleads legal property in himself, it is incumbent on the plaintiff to prove a paramount title. And possession is good assist all the world, unless a better title is proved. The present action is in the nature of the common law action of trover. We have the possession of the property, and we have averred that the legal property was in us. There is no testimony adduced which shows a particle of right or title in the petition.
    In a case of this kind, it is impossible to reason ; for there are no facts about which, to raise a discussion. It is impracticable to quote authority ; for there is no case, whatever, made out by the plaintiffs, to which they can be applied. They have made a claim to property which we contest ; but they have adduced no evidence in support of their claim.
   Martin, J.

delivered the opinion of the court. M'Neil, Fisk & co. of New-Orleans, who sue in behalf of W. King, of the state of Mississippi, state that Fisk & M’Neil, of Natchez, shipped on board of a boat, of which Samuel Crawford was master, and a common carrier, thirteen bales of cotton, for the account of said King, consigned to M‘Neil, Fisk & co. that the defendant has unlawfully possessed himself of the cotton.

The defendant answers that the cotton was by him fairly purchased in market overt, and he is a bona fide purchaser, for a valuable consideration ; that no consideration was paid by King to Crawford, and the transaction between them is a fraudulent one.

The district court gave judgment for the defendant, being, of opinion that “ there was no evidence which shews the defendant had any knowledge that the cotton was consigned to the plaintiffs ; that a large portion of the growers of the upper country produce are their own carriers, and whoever arrives at this port with produce is presumed to be owner of it. A bona fide purchaser, under such a title, ought to be maintained in the property ; that there was no sufficient evidence to establish collusion or fraud between the defendant and Crawford, the seller, and that the purchaser was not in good faith.”

The plaintiffs appealed, and the district judge has certified that the whole evidence appears on the record.

Stebbins Fisk deposed that he knew the bill of lading ; that it was to be given for the cotton sued for, which he knows to belong to King. Crawford, oh his arrival, called at the plaintiffs’ counting house, and offered to deliver the cotton as soon as he should find a birth. A year ago, last winter, he, Crawford, brought some tobacco, consigned to the plaintiffs.

On his cross examination, this witness said, he never saw Crawford write, and does not that the bill of lading is signed by him. He knows the cotton belongs to King, by the letters from Fisk & M’Neil to M’Neil, Fisk & co.: these houses being connected in co-partnership, and he knows it no otherway. Crawford called several times on the plaintiffs ; saying he could not land the cotton, because he was not able to come to the levee ; that, when he landed the cotton, he would inform them. The two houses are composed of the same members, except the latter, of which Mr. Lesassier is a member.

Manning deposed that the cotton was brought to the house occupied by one Rust, on the batture, at the corner of the canal, at 9 A. M. accompanied by ten men, who had been arrested by the marshal, and a few days before discharged from prison. He knew the cotton to have been ginned at Cochran’s gin, and communicated his suspicion that every thing was not right to Rust and Rogers, and would not have bought the cotton. It was put in a room in the lower part Of the house, next to which was another used as a grog shop, and another in which were gamling tables. The upper part of the house is occupied by a bar, two billiard and gambling tables. The house stands alone, directly on the river. When the cotton was brought the weather and roads were good, and it came from a considerable distance above.

Rust deposed he was called upon by the defendant and another person, who said he was the owner of the cotton, the night before it was brought, and asked leave to store it, which he granted. With the cotton, came, besides the negroes driving the drays, ten men : he received the cotton as the defendants, and held it subject to his order. He has frequently seen the defendant and Crawford, in company, at his house. The latter was generally considered, by the persons about the house, as engaged in the Mexican expedition, as well as several of the men who came with the cotton. The lower part of his house is occupied as a grog shop and gambling house, and is a place of common resort for boatmen. No cotton was ever before or since brought there.

Rogers was at Rust’s, when the cotton came ; he corroborates what he has deposed. His suspicions were excited by the appearance of things. He took down the marks and numbers of the bales : they correspond with the bill of lading annexed to the petition.

It appears to us that the district court erred. The plaintiffs ought to recover, if their allegations be uncontradicted or proven, unless some further fact be alleged and proven.

None of the allegations are contradicted ; but it is alleged that no consideration was paid by King to Crawford, and that the transaction between them is a fraudulent one. Crawford is not alleged, or pretended, to be King’s vendor of the cotton, he is only known in this suit as the master of the boat, and nothing was to be paid to him but the freight, and that, not till after the delivery of the cotton to the consignees. There is not any proof of fraud. So that the plaintiffs’ right to the cotton, as stated in the petition, is made out.

If the bona fide purchase of the cotton, alleged in the answer, was proves, it would be proper to enquire whether a sale by a common carrier transfers the property. But there is not any evidence of a sale, nor of any payment.

The defendant’s counsel contends that the cotton must be presumed to be his client’s, because it is proven that Rust received it as his, from a person who is, not named, or whom he does not appear to know.

The cotton claimed, in the petition, is therein described by the marks and numbers of the bales, in the margin of the bill of lading ; and Rogers proves that the cotton brought to Rusts, had the same marks and numbers. The defendant has not denied any of the facts in the petition, but has relied on special pleas, which the evidence does not support.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for the plaintiffs, with costs in both courts.  