
    John H. Keyser v. William H. Harbeck, John H. Harbeck, Samuel Ward, and Rodman M. Price.
    A person obtaining a delivery of goods under a contract of sale, though it be procured by false pretences, indictable under 2 R S. p. 677, § 63, can vest a title valid as against his vendor, in a bond fide purchaser. Such a contract is not absolutely void, as between the original parties. A title passes under it, defeasible and avoidable at the election of the first vendor, while the goods remain in the possession of his vendee, or in that of any person merely succeeding to the rights of the latter or standing upon his title. But all mesne dispositions to any party who pays value, and is not privy to nor cognizant of the fraud, will pass an indefeasible title to such party: 2 R S. p. 702, § 30, defining the word felony, does not affect the common law rule, applicable to such a state of facts.
    One bond fide advancing to a person thus obtaining goods, and acquiring a documentary title, and the constructive but not the actual possession of the goods, is not liable in trover to the first owner, for not giving him the manual possession of the goods, on a demand made, and offer to refund his advances, when he offers to assign all his documentary evidence of title to, and to confer all the actual power of disposition he possesses, on the original owner.
    A master of a vessel, who has issued a bill of lading in good faith to a person returning shipping receipts issued to the true owner on his putting goods on board of a vessel for transportation, is not liable in trover to the shipper of the goods, on a demand of them, without the bills of lading are surrendered or fully indemnified against, nor unless the master is also indemnified against all damages consequent upon the delay necessary to unload them, and is paid the expenses of loading and unloading them, notwithstanding possession of the shipping receipts may have been obtained from the shipper by false pretences. Nor are the owners of the vessel liable for the goods on such a state of facts.
    (Before Doer, Bosworth, and Slosson, J.J.)
    April 5;
    May 27, 1854.
    In April, 1850, one Louis Dietz called on the plaintiff, who is in business in Hew York, and applied to purchase of him a large quantity of hardware, to be shipped to California. He represented that he wished and was authorized to purchase for a rich firm in Wall street, who did not wish to be known as being then engaged in the California trade; that they would pay in cash on the goods being delivered on board the ship W. H. Harbeek. He procured from the plaintiff a statement of his prices for the articles proposed to be bought, under pretence of showing it to his alleged principals. He subsequently reported to the plaintiff that his prices were satisfactory to them. At an early stage of the negotiations, but not at the first interview, he told the plaintiff that the defendants, Ward & Price, were his principals.
    The plaintiff, without conferring with Ward & Price, but believing the representations, commenced delivering the goods on board the W. H. Harbeck. As he delivered them, he took from the master receipts, stating that the plaintiff had put the goods on board to be carried to California.
    When portions had been delivered, the plaintiff asked Dietz for mopey, who said his principals would not pay without the shipping receipts, to show that all was right. Dietz was thereupon intrusted with shipping receipts, and brought to plaintiff the full amount covered by such receipts. This occurred two or three times; when all had been put on board, being some 200- cases, and amounting at the contract price to ovei* $8,000, Dietz was intrusted with all the remaining receipts, in order to obtain payment from his alleged principals.
    He did not return with the money, but from day to day "excused the non-payment, until the plaintiff becoming alarmed sought Ward & Price, and then ascertained that Dietz’s representations were untrue. . That they had advanced to him on the representation and belief that the goods were his, and on the security of the shipping receipts. These they had returned to the master, and had obtained from him a bill of lading. The bill of lading stated that Louis Dietz had shipped the goods, and made them deliverable to the order of Ward & Price, at San Francisco, and was dated Hay 6, 1850.
    About the last of Hay, 1850, the plaintiff formally demanded of Ward & Price, the manual possession of the goods ; the latter offered to assign to plaintiff the bill of lading on being paid $4,030, the amount of their advances. The plaintiff offered to pay this sum if Ward & Price would give him the manual possession of the goods. They declining to do more than to assign and deliver the bill of lading to the plaintiff, he finally tendered the amount, $4,030, and demanded an actual restoration of the goods.
    The plaintiff also demanded the goods of the master, and of the defendants Harbecks, the owners of the vessel, and offered to pay the expenses of taking them ont of the vessel. The Harbecks refused to give up the goods, unless the bill of lading was returned, and they were paid the expenses of discharging, and indemnified against all liability to other shippers that might arise from delaying the voyage during the time necessary to unload. The master insisted that he was entitled to freight, as well as to a return of the bill of lading. It was proved to be the uniform custom for the master to issue a bill of lading to the person who presented and surrendered the shipping receipts.
    The case states that “ the counsel for the respective parties summed up the case to the jury, upon the question whether Dietz had obtained the property in dispute by false pretences, with intent to defraud the plaintiff.”
    “The Chief Justice recapitulated the evidence, and reserved all the questions of law arising between the' plaintiff and the respective defendants, for future consideration. He stated, in writing, the following question: ‘ Did Dietz obtain the property in question by false pretences V and directed the jury to make a written finding thereon. He explained to them the provisions of the statute in relation to obtaining property by false pretences, and what was necessary in order to. constitute the offence; and further instructed them, that, in order to bring the case within the statute, Keyser was bound to have exercised reasonable care and prudence, and that they must consider whether he had acted with ordinary diligence and precaution.
    “ The jury returned into court, and found in the affirmative in answer to the particular question submitted to them, and they also found a general verdict for the plaintiff, and assessed the value of the property at five thousand and seventy-nine dollars and thirty-one cents (5,079.31), and thereupon the chief justice ordered that the questions of law reserved, be heard in the first instance at a general term of the court. The verdict having been taken subject to the opinion of the court upon this case, with liberty to either party to turn the same into a bill of exceptions, and with liberty to the court to order a nonsuit or judgment for the defendants, or any of them.”
    
      
      E. Sandford, for plaintiff, argued the following points.
    I. The goods in question having been feloniously taken from the possession of the plaintiff, he was entitled to reclaim them wherever he could find them. The plaintiff did not part with his title to the property (2 R. S. 677, § 53; 2 Id. 702, § 30; Ward v. The People, 3 Hill 395). 1. It was not necessary for the plaintiff to prosecute the felon to conviction before be could recover his goods (2 R. S. 292, § 2; Grinson v. Woodfull, 2 C. & P. 41, and note; Hoffman v. Carow, 22 Wend. 285, 321). 2. The goods were obtained by means of false pretences, made with an intent to defraud the plaintiff (Young v. The King, 3 Term Rep. 98, 102; The People v. Haynes, 11 Wend. 557, 565; Regina v. Abbott, 2 Car. & Kir. 630; The Queen v. Kenrick, 5 Q. B. 49, 64; The People v. Kendall, 25 Wend. 399, 401; Regina v. Copeland, 1 Car. & Marsh. 516, 20 ; Rex v. Asterley, 7 Car. & P. 191, 92; Rex v. Parker, 7 Id. 825, 828, 831; Commonwealth v. Hulbert, 12 Met. 446; Commonwealth v. Drew, 19 Pick. 179, 184, 185; The People v. Johnson, 12 J. R. 292; Commonwealth v. Burdick, 5 Penn. Law Jour. 173, 175 ; The People v. Crissie, 4 Denio, 525-29.
    H. The rule which has been applied to purchases effected by means of a simple fraud, that a third person may acquire a good title from the fraudulent vendee, by giving him value for the property, or incurring some responsibility upon the credit of it, without notice of the fraud, is an exception to the general rule of law, and it is not applicable, and cannot, consistently with established principle, be extended to cases where the possession of the property was acquired by means of “ false pretences” within the statute. 1. In cases of simple fraud, the fraudulent vendee acquires no title as against the vendor, and has no interest which can be seized on execution (Mowry v. Walsh, 8 Cow. 238 ; Carey v. Hotaling, 1 Hill, 311; Olmsted v. Hotaling, 1 Id. 317; Root v. French, 13 Wend. 570 ; Bristol v. Wilsmore, 1 B. & C. 514; Ash v. Putnam, 1 Hill 302, 305). 2. The general rule of law that a bond fide purchaser from a person in the possession of property who has no title to it, and no authority from the owner to sell or dispose of it, cannot acquire any title against the true proprietor, is declared and applied in the following cases (Everett v. Coffin, 6 Wend. 609 ; Williams v. Merle, 11 Wend. 80; Everett v. Saltus, 15 Wend. 474, 76, 78; Saltus v. Everett, 20 Wend. 267, 75 ; Hoffman v. Carow, 20 Id. 21, 22; Hoffman v. Carow, 22 Wend. 285, 318 ; Ely v. Ehle, 3 Comst. 506, 509, 10). 3. The obtaining of goods by means of a fraud which would render the sale voidable at the election of the vendor, does not constitute an indictable offence within the meaning of the statute (Commonwealth v. Hickey, 3 Penn. Law. Jour. 86, 89). 4. Where the possession of property is obtained by means of such a fraud, the owner has an election to rescind the contract on discovering the fraud, or to be bound by it, and sue for damages for the deceit (Masson v. Bovet, 1 Denio 69, 73, 74; Campbell v. Fleming, 1 Ad. & Ellis, 40, 42 ; Whitney v. Allaire, 1 Comst. 305). 5. The rule that a bond fide purchaser from a fraudulent vendee may acquire a good title as against the original owner, is an anomaly in the law; it is contrary to the general principles of the law of property, resting upon very questionable suggestions of equity and expediency, and it ought not to be extended (Ash v. Putnam, 1 Hill, 302, 305 to 307). 6. When the statute made the obtaining of goods by means of false pretences a felony, the general rules of law, applicable to the possession of the property feloniously obtained, and the rights of the owners of such property, became applicable to such cases. It was the design of the Legislature to protect the owners of the property as well as to punish the felon. 7. This application of the statute has been made since its passage by the courts in this State, and in England (Andrew v. Dietrich, 14 Wend. 31, 35 ; Robinson v. Dauchy, 3 Barb. S. C. R. 20, 29, 30; Peer v. Humphrey, 2 Ad. & Ellis, 495-98-99). By this last case, Parker v. Patrick, 5 T. R. 175, which governed the Chancellor as circuit judge, in the trial of the case of Mowry v. Walsh, and controlled the opinion of the Supreme Court in the judgment given by them in that case (see 8 Cow. 244, 245) was overruled.
    HI. There was no delivery of the property in question to Dietz, which would bring this case within the rule applied in the case of Mowry v. Walsh, if that rule be applicable to goods obtained by means of false pretences within the statute. 1. The plaintiff placed the goods on board of the vessel, and took the receipts therefor in his own name. 2. When he gave the. receipts to Dietz to carry to Ward & Price, as the alleged principals of Dietz, the papers informed them of plaintiff’s title to the property. 3. The plaintiff did not deliver the goods to any person as purchaser with his own hands, nor part with their possession, so as to disenable himself from bringing an action therefor against any person who withheld them from him (Ely v. Ehle, 3 Comst. 506, 508; Fonda v. Van Horne, 15 Wend. 631, 635-6). 4. There was no evidence of any title to the goods in Dietz, or of the shipment of the goods by him. He had not the actual possession, nor any appearance of any actual possession of the goods. Dietz had not any invoice of the goods, nor any paper showing either their description, or their value, nor any wMoia of property in him. Keyser attended to the shipment of the goods, appearing to be the owner, and the receipts taken by him showed the title to be in him.
    IY. Ward & Price made their advances to Dietz under circumstances which were sufficient to have put them upon inquiry, and they were not bond fide purchasers, or pledgees, within the rule of the case of Howry v. Walsh, if that rule be applicable to this case. 1. There was no manual possession of the property by Dietz." They knew that he had not the actual possession. 2. Dietz had no bill of sale, or invoice, or bill of lading, or other usual documentary evidence of title.' He had nothing but receipts for so many boxes, not specifying their contents or value; and on the face of the papers these boxes purported to have been shipped by Keyser. The list of prices could not enable Ward & Price to know what articles were in the boxes. This list contained no quantities. 3. Ward & Price knew that Keyser was the original owner of these goods—Ward had inquired as to the prices at Keyser’s store. 4. Ward & Price knew that Dietz had no means, and had already detected him in dishonest practices. 5. Ward & Price enabled Dietz to commit the felony upon the plaintiff; they delivered, to him the letter from their correspondents in San Francisco, and thus gave him currency; they allowed him to use it to obtain the goods; sanctioned the appearances with which they had clothed him, by personally calling and examining the goods he was proposing to buy; allowed both Stebbins & Olcott to believe that Dietz was their agent, and the plaintiff to make the agreement to sell without any communication or explanation. 6. Making an advance under such circumstances, when Keyser could have been communicated with by them within ten minutes’ time, was an act of gross negligence (Peabody v. Fenton, 3 Bar. Ch. R. 464; Saltus v. Everett, 20 Wend. 267, 272, 275, 281, 284; Ash v. Putnam, 1 Hill, 307). 7. They were not bond fide holders, because their agreement upon which the advances were made was usurious (Ramsdell v. Morgan, 16 Wend. 574). And also because they were temporary loans to Dietz to be replaced by paper at six and nine months. The advances constituted a debt due from Dietz.
    V. Ward & Price did not acquire any lien upon the goods by means of their advances upon the receipts. The Factors’ Act of 1830 does not apply to the case. 1. Dietz was not' a factor of plaintiff. 2. He was not intrusted with any bill of lading or other documentary evidence of any title in him. 3. He was not an agent of plaintiff for the sale of this property. 4. The statute was made to protect advances made on the faith of the ownership of the property by the person possessed or intrusted (Zachrisson v. Ahman, 2 Sand. S. C. R. 75 ; Stevens v. Wilson, 6 Hill, 512; 3 Denio, 474, S. C.)
    VI. Messrs. Harbeck & Co. had no right to detain the goods of the plaintiff from him—the rule does not depend upon the position of the property, whether it be in a warehouse or in a ship, or if in a ship, whether it be upon deck or between decks, or in the lower hold (Cummings v. Vorce, 3 Hill, 282; Zachrisson v. Ahman, 2 Sandf. S. C. R. 73).
    VH. Ho tender to them was necessary. If it had been, the offer of the plaintiff to pay all the expenses, and the peremptory refusal to deliver, was sufficient to dispense with any further tender. The bills of lading were not asked for nor set up as a ground for refusing to deliver. If that ground had been taken, the plaintiff might have obtained them from Ward & Price, and removed that difficulty.
    VIH. Keyser was the actual shipper, and took receipts in his own name—the signing of bills of lading in favor of Dietz, and afterwards in favor of Ward & Price, was without any endorsement from or consent of Keyser. Harbeck & Co. issued these bills of lading at their own risk; their delivery to any other person than Keyser, showed a want of caution on their part.
    IX. The plaintiff is entitled to recover the goods from Ward & Price, even if they had made bond fide advances thereon, after making a demand from.them and offering to pay their advances, and their refusal. He is also entitled to recover against Harbeck & Co., after making a demand of them, and offering to pay all expenses of taking them out of the ship, and their refusal to deliver.
    X. Judgment should be given for the plaintiff on the verdict.
    
      J. W. Gerard, for defendants, Harbecks.
    
      J. Larocque, for Ward & Price, argued the following points.
    I. Assuming the finding of the jury on the point submitted to them to be in accordance with the evidence, there must on the case be judgment for the defendants, Harbeck & Co., and Ward & Price. They are bond fide purchasers, without notice, for value, and having advanced money, and incurred responsibilities on the faith of the documentary title of the property in question, to a person in possession, are entitled to hold the same against the plaintiff, the obtainment of goods by false pretences not being such a felonious taking as will avoid their title. In other words; if there is a sale and delivery of goods obtained by fraud, third persons, who, bond fide, and without notice, purchase from, or enter into responsibilities with or for the fraudulent vendee, on the credit of the goods, are protected against the claims of the original vendor. (Mowry v. Walsh, 8 Cowen, 238; Root v. French, after the revised statutes, 13 Wend. 570.) The plaintiff’s claim rests on a technical statutory forfeiture, arising only by implication. It may be thus stated : 1. At common law no title can be acquired through a felony. 2. The statute defines felony to be an offence punishable by imprisonment in a state prison (2 R. S. 4th ed. 886, marg. p. 702, § 30). The offence of obtaining money by false pretences may be punishable by such imprisonment (p. 861,4th ed. § 53, marg. p. 677). 3. Therefore, the obtainment of goods by false pretences may be a felonious taking. The answers are, first, obtaining goods by false pretences is not a felony at common law, and the statute has not changed the rule. It has not been, and should not be, so construed. (Mowry v. Walsh, 8 Cowen, 238 ; Root v. French, 13 Wend. 570.) They do not change the rule; the provisions of the two sections are as follows (2 R. S. 4th ed. p. 861, marg. paging, p. 677, § 53): “Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretence, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, on conviction thereof shall be punished by imprisonment in a state prison not exceeding three years, or in a county jail not exceeding one year, or by a fine not exceeding three times the value of the money, property, or thing so obtained, or by both fine and imprisonment.” (2 R. S. 4th ed. p. 886, marg. paging, 702, § 30:) “ The term felony when used in this act, or in any other statute, shall be construed to mean an offence, for which the offender on conviction shall be liable by law to be punished by death or imprisonment in a state prison.” In the first (§ 53), not only is the term felony not used, nor the offence in terms declared to be a felony, but the punishment is not necessarily limited to that species or duration of imprisonment which gives the offence, according to the plaintiff’s view, its baptismal title. The second section does not say that every offence for which a man shall be imprisoned in the state’s prison is a felony. There is no connexion, by express reference, between the two sections; in the connexion in which the latter section is found, it is one of a series of, definitions; the object of the section is to define the meaning of the word felony, when it is used in the statute, and only when it is so úsed; thus, necessarily leaving offences not declared by statute to be felonies, to remain what they were at common law. (Ward v. The People, 3 Hill, 398.) Another answer is, it is conceded that the offence is only made a felonious taking by implication, it is a constructive and artificial felony. How the effect of the construction contended for being to forfeit previously recognised rights of bond fide purchasers under situations- similar to the defendants, these legal principles are opposed to its adoption. l.,It would work a penalty and forfeiture to third persons, which cannot be created by implication, only by express terms. (Jones v. Estis, 2 T. R. 379 ; Myers v. Foster, 6 Cow. R. 567.) 2. The place or extent of punishment does not characterize crime or affect the right of third parties. When the case of- Mowry v. Walsh was decided, the offence of obtaining money or goods by false pretences was punishable, in the discretion of the court, by imprisonment in a county jail, or in a state prison (1 R. L. 1813, p. 410, § 13), and by § 14, persons sentenced to be imprisoned for three years or more shall be imprisoned in the state prison. In the case of Mowry v. Walsh, the possession of the goods was obtained through the crime of forgery, which, by the .then statute, was expressly declared to be a felony, and punishable by imprisonment for fourteen years in the state’s prison. (1 R. L. 1813, p. 404, § 1; also 409, § 5.) It will be perceived that the punishment under the revised laws for obtaining goods by false pretences, in case of imprisonment, was heavier than under the revised statutes, being for three years in the state prison, whereas, under the revised statutes, the imprisonment may be in a county jail for a term not exceeding one year, so that the statute of 1830, being at most but a re-enactment of the law of 1813, the only change in the phraseology being a modification in the punishment, will not work a change in the law to affect third persons; the intention to produce such change nowhere clearly appearing, but the reverse. (2 Caine’s Cases in Error, 143,151,; 4 John. R. 317, 359; 21 Wend. 316, 319; 2 Hill, 380.) The third great answer is, that the statute did not mean to alter the law, so as to take away or affect the rights of bond fide purchasers without notice, but merely to save repetition in penal statutes, as to the place where criminals, who commit certain offences, shall be confined.
    II. The felony which will avoid the title of a bond fide purchaser, without notice, must be a larceny, or taking by theft or violence, and not the constructive artificial felony, the creature of the statute. Hence, though the goods in question may have been -obtained by such a fraud as would have subjected Dietz to the punishment prescribed by the statute, and made him a constructive felon, yet, as Keyser delivered possession with intention of passing the title t o Dietz, the title of the defendants, Ward & Price, and Harbeck & Co., is not impaired by his fraudulent aóts.” (8 Cowen, 238; Carey v. Hotaling, 315 ; 1 Hill, 311; 14 Wend. 32 ; 22 Wend. 278-9 ; Malcom v. Lowendge, 13 Barb. 372.) This was the principle on which the case of Mowry v. Walsh was decided; that case is adopted and recognised as law in cases subsequent in time, and superior in authority, to the case óf Andrews v. Dieterich, in 14 Wend. 36. This case, in fact, decides nothing against us, because the verdict was reversed upon the independent ground that no title in the carpet had passed to the purchaser on account of the delivery not being completed. It does not appear what was the final disposition of the case. The doctrine we contend for has been the uniform doctrine to the present time of the New York Superior Court, and has never been questioned in the numerous instances in which it has been applied. (Vide Root v. French, 13 Wend. 570; Saltus v. Everett, 20 Wend. 272, 278-9, 284; Hoffman v. Carow, 22 Wend. 292, 294; Peabody v. Fenton, 3 Barb. C. R. 463 ; Ash v. Putnam, 1 Hill, 308; Carey v. Hotaling, 1 Hill, 313.) In which last case the distinction is very clearly drawn between the effect of fraud on the sale, as between the original parties, and the same case when bond fide purchasers are concerned. Vide also, particularly, page 315, where the court said, “ that the indictable quality of the fraud has no bearing whatever on the question of nullity of the sale.” The question in Mowry v. Walsh was, not whether the offence, perpetrated by the fraudulent vendee, was or not a statutory felony in terms, but whether he got possession of the property with or without the consent of the owner; if with such consent, by whatever fraudulent means it was obtained, there could be no felonious taking. (2 East. P. C. 668.) Mowry v. Walsh was confirmed in the following cases, decided since the Revised Statutes, and after Dieterich v. Andrews, in 14 Wend., viz. Putnam v. Ash, 1 Hill, 305-8; 20 Wend. 272, 278-9, 284; Hoffman v. Carow, 22 Wend. 292.
    IH. Keyser having shipped these goods himself, and having given to Dietz the possession of the shipping receipts, the documentary evidences of title, the defendants, dealing with him on the faith thereof, are within the exception established by the Court of Errors, by which title passes to those who bona fide deal with the holder of the documentary evidence of title, though the fraud by which such evidence was obtained may now be a statutory felony. (Everett v. Saltus, 15 Wend. 476; same case in Court of Errors, by the Chancellor, 20 Wend. 272; Senator Verplanck, 278-9, 80-4..) All these are after the case of Andrews v. Dieterich.
    
    IY. The defendants may claim protection under the statute of agency, the first and third sections thereof, where money is advanced on the faith of the bill of lading, and this, too, where there was no intention by the owner to sell or part with his property. (Laws of 1830, p. 203; 1 R. S. 4th ed. p. 184; Jennings v. Merrill, 20 Wend. 9 ; Covill v. Hill, 4 Denio, 330.)
    Y. The conceded acts of Keyser amount to an estoppel in pais, and prevent him from claiming his goods as against third persons who have given credit to such acts, especially as he received such advances, and got an order from Dietz for the balance of the goods. Whatever may have been originally Keyser’s rights, or the character of Dietz’s representations, by his own acts, the plaintiff is estopped from setting up his present claim. The law will not tolerate so gross a wrong that he shall keep our. advances and the goods too. (Matteawan Co. v. Bentley, 13 Barb. S. C. R. 641; Wheaton v. Baker, 14 Ib. 597; 4 Comst. 309-10; 4 Paige, 544.)
    YI. The sale was not made on representations, because the property was not delivered on them. Keyser shipped the property himself; all he delivered was the shipping receipts, not, however, on the original representation as to who was to he the purchaser, but on Dietz’s promise to bring the money for them, which was not a false pretence. Dietz might have been liable in a special action for deceit in the sale, but not for obtaining possession of the property.
    YH. The pretences proved were not such as are contemplated by the statute, not being such as would have been likely to mislead a man of ordinary care and prudence. In the early stage of the proceedings, long before the goods were delivered, Dietz disclosed the name of Ward & Price, and it became his duty to inquire, Dietz being an entire stranger to him. (The People v. Stetson, 4 Barb. S. C. R. 151; The People v. Williams, 4 Hill, 9 ; The People v. Haynes, 14 Wend. 562, 546, and 549.) The representations must be at the time of the sale and before delivery.
    VIII. Neither Ward & Price, nor the Harbecks, under the circumstances proved, have been guilty of a conversion. There has been no proper demand, no improper refusal. As to Ward & Price, Keyser could not demand the goods or the bill of lading without tendering them their advances and charges. He did so. Then Ward & Price, he having Dietz’s consent, immediately offered to transfer the bill of lading, the documentary evidence, all they had; they never had the goods or shipped them, only the bill of lading; they then were not guilty of & conversion. As to Harbeek & Go., Keyser shipped the goods himself, took the receipts, put them in circulation, on which the Harbecks issued bills of lading; they could not consent to deliver the goods until the bills were tendered back with security to pay the expenses and damages consequent in unloading the vessel, and also freight to- California under the shipment made to Keyser himself. ' Without any tender or offer whatever he sought to compel them to deliver the goods
    IX. The finding of the jury is against law and evidence. '
   By the Court. Bosworth, J.

The question argued at the general term by the counsel of all the parties, as being the principal one arising in the cause, is this : Can a party who has been fraudulently induced to sell and deliver goods by means of false pretences, indictable under the revised statutes, reclaim them from one who has bond fide bought and obtained possession of them from the fraudulent vendee %

The plaintiff’s counsel insists, that when a party is deprived of his goods by acts amounting to a felony at common law, his title cannot be divested by a sale to a bond fide purchaser. This is not denied. But he also insists, that the revised statutes have made the obtaining of goods by false pretences a felony, and that it follows that the general rules of law applicable to the rights of an owner of property feloniously taken, are applicable with equal force to property taken from him by false • pretences, indictable by the revised statutes (14 Wend. 31, 35; 3 Barb. S. C. R. 20, 29, 30; 2d Ad. & Ellis, 495-98-99).

The defendants concede that a party who has been deprived of his property by acts amounting to a felony at common law, may reclaim them from one who has bond fide bought them from the felon. But they insist, that when the owner has delivered them to a third person, intending, at the time of the delivery, to part with his title to such person, though he may have been induced to deliver them with such intent by fraud or false pretences, he cannot reclaim them from one who may have bond fide bought them from the person to whom they were so delivered. That such was and is the well settled rule, unless it has been altered by 2 R. S.. 677, § 53, and Id. 702, § 30.

That § 30 (p.. 702) creates a statutory definition of the word felony, for the mere- purpose of attaching to it a precise and definite meaning whenever found in any statute of the State, and not for the purpose of affecting the rights of property of third persons, growing out of any bona ficHe dealings between them and their vendors, in relation to property obtained by the latter, by acts which- were not a felony at common law, but which might be such under this statutory definition.

That under a just construction of the two sections cited, the obtaining of goods by false pretences is- not a felony within the definition of the word given by the- statute that the obtaining of goods by false pretences is not declared' by 2 R. S.. 677, § 53, to be a felony, nor is the word felony to- be found in that section, nor in the article containing that section. That although the offender may be punished by imprisonment in a state prison not exceeding three years, yet he may be imprisoned in a county jail only, and for less than- one year, and may be punished merely by the imposition of a fine.

The section defining the word “felony” reads thus:

“ The term ‘ felony,’ when used in this act, or in any other statute, shall be construed to- mean an offence for which the offender, on conviction,, shall be-liable by law to be punished by death or by imprisonment in- a state prison” (2 R. S. 702, § 30).

Tire revisors’ note- to> the section states, that “ the term felony originally imported an offence for which the offender forfeited his fief, his lands and tenements, goods and chattels (4th Black. 94). Such forfeitures have long been abolished, and the term has really no signification in our law. It is frequently used in statutes, and it is therefore desirable to give it a definite meaning. The definition proposed is conformable to the common understanding” (3d R. S., 2d edit., p. 836-7).

Does the term, as defined in § 30, mean an offence for which the offender, on conviction, must necessarily be punished by imprisonment in a state prison, or is it enough that he is liable to be so punished, although the punishment may, in fact, be only a fine ?

If sentenced merely to pay a fine, is he rendered incompetent as a witness, under § 23 of 2 E. S. 701. If sentenced to imprisonment in a state prison, does that section render him incompetent? Whatever may be the sentence, it is pronounced upon a conviction of having obtained property by false pretences.” The offence, in the case supposed, is necessarily a felony or no felony, irrespective of the degree or character of the punishment that may be actually adjudged, or else it depends upon the sentence that may be pronounced, and not upon ' the nature of the offence alone, whether it is to be the one or the other, with the resulting consequences? If it depends upon the sentence, then one obtaining goods by false pretences must be convicted and sentenced before it can be known whether he obtained them by felony within the statutory definition of the word.

- If sentenced to imprisonment in a state prison, is the person ' who was defrauded of his property by the false pretences, a creditor of the convict under 2 E. S. 700, § 14?

I think the definition of the term “ felony” found in the statute, was enacted for the mere purpose of giving it a definite meaning when found in statutory law, and without any design of affecting by it the rights or liabilities of third persons, resulting from ordinary and bond fide business transactions between them, and any one who may have obtained the property to which the transactions relate, by acts which were not a felony at common law, but which, by the revised statutes, may possibly be an offence, coming within their definition of a felony.

Petit larceny was a felony at common law, under the statutory definition it is not; being punishable by imprisonment in a county jail not exceeding six months, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment. Accordingly it was held in Carpenter v. Nixon, that a person who had been convicted of petit larceny was a competent witness; that, though still a felony at common law, it was not so by statute, and that the statute declaring a person convicted of a felony incompetent to be a witness, excluded only such as were guilty of the offence as defined by the statute; that this word, in the disqualifying section (2 E. S. 701, § 23), was used as defined by § 30, p. 702; and therefore the offender was competent, though convicted of an offence which was a felony at common law (Carpenter v. Nixon, 5 Hill, 260; and see Ward v. The People, 3 Hill, 395).

Conceiving that the question is not affected by the revised statutes, it remains to be considered how it should be determined on principle and authority.

There is no question that a vendor who has been induced by false pretences, within the meaning of those terms as used in the revised statutes, or by fraud not indictable, may reclaim the property from the fraudulent vendee.

But when a question of right or title arises between the vendor and a bond fide purchaser from the fraudulent vendee, an entirely different case is presented, and other considerations are to be taken into account. Hence it has been held that when the owner of property is induced to sell it, though by fraud, and actually delivers possession of it, intending at the time to then part with his title to it, a bond fide purchaser from the fraudulent vendee will hold it against the defrauded vendor. In such a case one of the persons must suffer, the original vendor or the last purchaser. Either the party who has actually consented to sell and deliver his property, and has delivered it with intent to part with his title, dr the one who has bought it in good faith from the person to whom such sale and delivery were made.

Mowry v. Walsh, 8 Cowen, 238, is in point, and if the settled law of this State is in conformity with the rule it adjudged, it is decisive of this question.

In deciding the., latter case, the court seem to have been much influenced by the decision in Parker v. Patrick, 5 T. R. 175. In Parker v. Patrick, a pawnee of goods, which had been obtained from the defendant, the true owner, by fraud and false pretences, recovered their value, notwithstanding the defendant had procured the offender,.who pawned them to the plaintiff, to be indicted and convicted.

The plaintiff’s counsel insists that Parker v. Patrick is discredited by the subsequent decision of Peer v. Humphrey (2 Ad. & Ellis, 495), and that the latter establishes the doctrine that the right of an owner to reclaim his property from third persons is the same, whether it was taken from him by acts amounting to felony at common law, or by false pretences. The only thing said in Peer v. Humphrey, by way of questioning Parker v. Patrick, is this remark of Lord Denman : “ Another difficulty arises from the case of Parker v. Patrick, 5 T. R. 175. There, indeed, the court distinguished between fraud and felony ; but in the argument for the present defendant it is denied that such distinction can be taken ; if so, the decision in that case was incorrect. And if the question of goods fraudulently obtained were before us, I cannot help thinking that the case of Parker v. Patrick would not bear examination. • The Earl of Bristol v. Wilsmore, 1 B. & C. 514, seems to me quite inconsistent with it.”

It is difficult to see what inconsistency there is between Parker v. Patrick and the Earl of Bristol v. Wilsmore. The plaintiff, in the latter case, was not a purchaser from, or paw-nee, in good faith, of the offender. But he was a sheriff, and as such had seized the property on an execution against the wrong-doer. The latter acquired no title as against the defendant, the true owner, and the sheriff, by merely levying on his interest, acquired no equity superior to the legal title of the true owner, but, on the contrary, stood solely upon the title of the wrong-doer. Again, it is to be observed that Parker v. Patrick was decided while the act of 21 Hen. 8, c. 11, was in force, and was put on the ground that that statute gave an absolute right of restitution to an owner who had been deprived of his property by felony, on prosecuting the offender to conviction, but gave no such right to one who had been deprived of it by false pretences, which offence was not a felony. Before Peer v. Humphrey arose, the 21st of Hen. 8, c. 11, had been repealed by statute of 7 and 8 G. 4, c. 27, § 1. The statute of 7 and 8 G. 4, c. 29, § 57, substituted other enactments as to restitution, and gave the right to one whose goods had heen obtained by fraud, on prosecuting the offender to conviction. The case of Peer v. Humphrey was one of larceny, and therefore was clearly distinguishable from Parker v. Patrick; and if what Avas unnecessarily said of the latter, was said without adverting to the fact, that the statutes in force at the time the two cases were decided, were essentially different, there is nothing in the remark to shake the decision in Parker v. Patrick.

In White v. Garden et al., 5 Law and Equ. R. 379, the case of Parker v. Patrick was approved by the judges of the Court of Common Pleas, who thought it sustainable on the ground that the contract, though induced by false pretences, was not absolutely void, but only voidable at the election of the first vendor, who might affirm it and sue upon it. That unless he avoided it, before the property had passed into the possession of one who had bought or advanced upon it, without notice of the fraud, his title would be divested, as between him and such purchaser, or the person so advancing (see Lord v. Green, 15 Mee. and W. 216).

In Rowley v. Biglow, 12 Pick. 307, 312, the court say: “We taire the rule to be well settled, that where there is a contract of sale, and an actual delivery pursuant to it, a title to the property passes, but voidable and defeasible as between the vendor and vendee, if obtained by false and fraudulent.represénta■tions. The vendor therefore can reclaim his property as against the vendee, or any other person claiming under him and standing upon his title, but not against a lana fide purchaser without anotice of the fraud. The ground of exception in favor of the latter is, that he purchased of one having a possession under a contract of sale, and with a title to the property, though defeasible and voidable on the ground of fraud ; but as the second purchaser takes without fraud, and without notice of the fraud of the first purchaser, he takes a title freed from the taint of fraud (Parker v. Patrick, 5 T. R. 175). The same rule holds iib regard to real estate.” “ The difference between the case of ¡property thus obtained, and property obtained by felony, is obvious. In the latter case, no right either of property or possession is acquired, and the felony can convey none.” (Hoffman et al. v. Noble et al., 6 Met. 68).

It may be contended, with much force, that when a person obtains property by false, pretences, he acquires no right either of property or possession, and the false pretences can convey none. That such a party may be sued in trespass de bonis asportatis, or by replevin in the cepit, without a previous demand (Carey v. Hotailing, 1 Hill, 311, and ed. 317, ed. 302).

I think it a more accurate statement of the rule which protects a bond fide purchaser from- a fraudulent vendee, to say, “ that where there has been a contract of sale and a delivery under it, sufficient in law to vest the property in the first purchaser, and make a good title, if not tainted with fraud, the bond fide vendee of such a purchaser, buying and obtaining possession before the contract has been rescinded, will acquire a perfect title as against the first vendor.”

So if the true owner has intrusted to a third person written evidence of title, or of an absolute and unqualified power of disposition, any one who advances his money to and obtains possession of the property from such third person, in good faith, relying on the facts being in conformity with this written evidence of their truth, will acquire an indefeasible title as against the true owner. In the case of a sale, the. property is sold and delivered with an actual intent, that the purchaser may sell or otherwise convert it to his own use. A third person buying and taking a delivery of the property from the first purchaser, does only what the first vendor actually expected would be done by some one in respect to the property. He has enabled his vendee, and intended to enable him, to sell and deliver the property to others, who might bond fide part with their money and take the property in entire confidence of acquiring a perfect title. If in such a case the first vendor can afterwards rescind the sale and treat it as absolutely void as between himself and such a purchaser, then every bond fide purchase of chattels may be avoided by any former owner from whom they may have been obtained by a fraud, .which would avoid the sale as between him and his immediate vendee. Ho one could buy chattels with security of acquiring a title, even in the cases in which a former owner had made a sale in fact, and a delivery under it with intent to then pass the title, if it should subsequently appear that he had been induced by fraud to sell and deliver them., When goods have been stolen or taken by an actual trespass, or have been delivered’ for a special purpose without any authority to sell, a different principle applies. In the first two cases supposed, the owner never made any delivery of the property, nor gave any actual or constructive assent to it. He never intended to part with the title or possession, in any event. He has done nothing which could aid the efforts of the felon or trespasser to defraud third persons. It is not a case m which his acts have enabled a third person to commit- a fraud, by which one of two persons equally innocent of any actual bad faith must suffer. In the case last supposed, he parted voluntarily with the possession. It is true that the only difference between that case, and the case of a sale and delivery of goods not accompanied by a bill of sale, or a bill of parcels, with payment receipted, so far as third persons can ascertain the truth of the transaction from appearances only, is hardly perceptible. In either case, the only evidence of title which the possessor of the property has or can exhibit, is the fact of actual possession. In either case, a person wishing, or solicited to purchase, sees him in the actual possession, claiming to be owner. Why, then, should a vendee acquire a title, if it turns out that possession was acquired under a fraudulent purchase, and none where it was obtained for a special purpose, and without any authority to sell in any event ?

It is difficult to find any principle on which to discriminate between them, except that above stated. The cases already cited, as well as numerous others, protect the bona fide purchaser on that principle. The rule is briefly and clearly, and, as we think, correctly stated in the recent case of Stevenson v. Newman, 16 Law and Eq. R. 401,408. “ The fraud only gives a right to rescind. In the first instance, the property passes in the subject matter. An innocent purchaser from the fraudulent possessor may acquire an indefeasible title to it, though it is . voidable between the original parties. It must be considered therefore as established, that the fraud only gives a right to avoid a contract or purchase; that the property vests until avoided, and that all the mesne dispositions to persons not parties-to, or at least not cognizant of) the fraud, are valid.”

■See Colton et al. v. Gage et al., 13 Illinois E. 610, 614; McMahon v. Sloan, 2 Jones, 283 ; Kensbivry v. Smith, 9 N. H. 109.

Assuming the defendants, Ward & Price, to have advanced their money in good faith, we are of opinion that the plaintiff had no right against them to require the bill of lading to be endorsed and delivered to him, except upon the terms of paying what they had so advanced; all they could be required to do was to endorse and deliver the bills of lading to the plaintiff ; this they offered to do on being paid their expenses. The plaintiff offered to pay, and tendered to them the amount of their advances on condition of their giving him the manual possession of the goods; such possession he demanded of them, and clearly he had no right to require this. The defendants, Ward & Price, cannot be charged with the value of the goods for not complying with this demand. They offered to do all they had the power to do, viz. to give him all the evidence of title, and all the actual title, with all the consequent power of disposition and control which they possessed.

As there was no objection made to the competency or sufficiency of the evidence given in relation to the general usage for the master to issue a bill of lading to the person in possession of the shipping receipts, and as no counter evidence was offered, we consider it as assumed and conceded at the trial, that the usual and known course of business corresponded with the usage relied upon ; its existence seems to be recognised by adjudged cases. (Craven et al. v. Ryder, 6 Taunt. 433; Ruck v. Hatfield, Barn. & Ald. 632 ; Jones Shealf v. Bradner et al. 10 Barb. S. C. 194; Abbott on Shipping, 5th Am. ed. 321, 347, marginal paging; and see Bank of Rochester v. Jones, 4 Comst. 496.)

The Harbecks were not under any obligation by reason of the offer made to them or to the master by the plaintiff, and the accompanying demand to unload the goods. Keyser himself put the goods on board to be transported to California. Eeceipts imposing that obligation on the master had been taken by the plaintiff. Bills of lading had been issued in good faith by the master, and were in hands of persons who had bond fide advanced on the goods. Without returning the bills of lading, and paying or fully indemnifying the vessel against the expenses of loading and unloading, and the damages to which her owners might be subjected by the delay unavoidably consequent upon unloading, neither the owners nor the master were in fault for not giving up the goods. This the plaintiff did not offer to do ; he neither tendered nor offered to procure and return the bills of lading, nor was it at any time in his power to return them. He offered, at most, merely to pay the expenses of unloading; he did not offer to pay the expenses of stowing the cargo, nor damages consequent upon the delay that would be caused by unloading.

Whether he would be obliged to pay, in addition, full or any freight, it is unnecessary to decide. There was no offer to pay.freight, although the captain insisted he was entitled to it; the captain was at least entitled to his freight or to be paid the expenses of stowing the cargo and of unloading it, and to full indemnity against the damages which would result from delaying the voyage until this part of the cargo could be taken out of the vessel, and to have the bills of lading restored to him.

Neither was tendered. No cause of action was primá fade established against the Harbecks.

From the manner in which the cause was submitted to the jury, it is quite evident that the plaintiff’s counsel did not suppose that there was any evidence on which he could anticipate a verdict, that the defendants, Ward & Price, did not advance in good faith, nor that there was any use to have that question submitted. We do not think that the evidence discloses a knowledge on their part of any facts or circumstances which make it proper to grant a new trial for the purpose of having that question submitted.

The verdict being subject to the opinion of the court upon the questions of law arising upon the evidence, and that being of a character to justify specific instructions to the jury upon' all the questions of fact, except the one specially found; and the liberty being resumed to the court to order a nonsuit, and that disposition being a just one, according to the case presented to us, a judgment of nonsuit must be entered.  