
    Bates v. Stanton and others.
    As a general rule, a bailee cannot set up a right of property in a third person to defeat a recovery by his bailor.
    To this general rule, however, there are many exceptions.
    Semble—That the right of the true owner may be set up in all cases where, upon his demand, the property has been in fact delivered to him before the commencement of the suit.
    
      Feb. 17;
    June 12.
    The law may be considered as settled, that such a delivery is an absolute bar to the claim of the bailor, when it is shown that he had obtained possession of the property by felony, force, or fraud.
    
      Held, that the evidence given by the defendants upon the trial in support of their defence, that the goods in controversy had been obtained from an agent of the owners by collusion and fraud, was properly admitted.
    
      Held also, that the record of a judgment in favor of the owners against the plaintiif for the recovery of the goods, was conclusive evidence of such collusion and fraud, the questions litigated and the parties being substantially the same. (Before Duer, Pathe, and Bosworth, J. J.)
    The complaint alleged that the defendants were the owners and master of the ship Hero, one of a line of packet ships sailing at stated periods between Hew York and Hew Orleans, called “ Stanton’s Line,” for the transportation of freight and merchandise for hire, and that the defendant, Stanton, was the agent of the line, and engaged in receiving and sending freight and merchandise for hire from Hew York to Hew Orleans, and forwarding it to St. Lords and other places above and beyond that place.
    That on the 3d day of April, 1848, the plaintiff, being the owner of 125 cases of boots and shoes, which he was desirous of sending to St. Louis, with a view of there commencing the boot and shoe business, shipped the, same on board said ship for Hew Orleans, to be forwarded to St. Louis, and took from the master a bill of lading of that date, by which the defendants acknowledged the receipt of said cases of merchandise from the plaintiff on board said ship, and agreed to carry them to Hew Orleans, and forward them to St. Louis.
    That the ship sailed, and arrived at Hew Orleans on the 23d of April, with the goods on board; that after she sailed, the defendant, Stanton, wrote to the consignee and agent of the ship at Hew Orleans, in combination with one Jesse Y. Hiles, and caused said goods to be returned in said ship on her return voyage to Hew York, and said property, of the value of $5,747 29, was by the defendants converted to their own use. The plaintiff demands the amonnt of the goods and consequential damages, amounting in the whole to $10,000.
    The defendant, Stanton, and the other defendants, in separate answers, made substantially the same defence.
    
      They- admit the receipt of the goods on board of the ship, the sailing of the ship, and their refusal to deliver them, and in excuse, say:
    That the goods did not belong to the plaintiff, but to Grant & Ensign, of Hartford, Connecticut, who had intrusted them to one Cook, to sell for them in his store in Korwich, Connecticut. That the plaintiff obtained them by a fraudulent combination with Cooke. That being so informed by Kiles and Grant & Ensign, the defendants, at their request, caused 121 cases of said property to be returned in the ship to Kew York, and there delivered to Grant & Ensign, and took their bond of indemnity against the plaintiff’s claim, and Grant & Ensign defended this action.
    The plaintiff, in reply, controverts the averments in the defendants’ answers.
    On the trial before Oakley, Oh, J., and a jury, the plaintiff, having produced the bill of lading, the execution of which was admitted, and proved a demand of the goods of the defendants, and a refusal to deliver them before the commencement of the suit, rested his cause.
    The defendants then offered in evidence, in defence of the plaintiff’s action, a record of the proceedings in a case in the Court of Common Pleas in the State of Massachuetts, where, in an action of trover for one hundred and twenty-five cases of boots and shoes, claimed to be those in question, by Grant & Ensign, against Bates, they recovered a verdict for'$3,534 22 damages, and a judgment thereon, and in which, on exceptions taken to the ruling of the judge, the case was removed to the Supreme Court, and was then pending.
    The plaintiff objected to the admission of this testimony on the ground that the defendants could not dispute the plaintiff’s title to the property in' the bill of lading, that the proceedings were between other parties, and assuming them to be a final judgment, did not conclude the parties to this suit; that the proceedings on their part showed that the judgment was not final, and were not sufficient to estop the plaintiff in this action.
    The court decided that the proceedings in the court in Massachusetts were admissible in evidence, and that the defendants might dispute the plaintiff’s title by showing the title of the goods to be in Grant & Ensign.
    The court thereupon decided that' said proceedings were conclusive as to the rights of the parties to this action, and precluded the plaintiff from any right to recover for the 125 cases of boots and shoes in the complaint mentioned, or any part of them, and ordered the complaint to be dismissed and judgment to be entered for the defendants.
    From this judgment the plaintiff appealed, and the case was now before the court upon a bill of exceptions.
    
      F. B. Cutting and Asa Child, for the plaintiff,
    made and argued the following points—
    I. The ship-owners having refused to deliver the goods in pursuance of the bills of lading, were guilty of a conversion.
    n. The ship-owners were not compelled by any legal proceedings, or other compulsory means, to surrender the goods to Grant & Ensign; the property was brought from Hew Orleans by them in violation of their contract as carriers, and was voluntarily delivered to Grant & Ensign. They cannot now set up an adverse title against the shipper who intrusted them with the property. Having obtained possession from the plaintiff, by reason of an express undertaking to deliver them to him or to hi@ assigns, they are estopped from setting up title in strangers (Gosling v. Birney, 6 Bing. 339; Kiernan v. Sanders, 6 Ad. and Ellis, 516; Hall v. Griffin, 10 Bing. 246; Miles v. Cattle, 6 Bing. 734; 1 Bacon Abg. 369, Title Bailment (A). Story on Agency, sec. 217; Angel on Carriers, sec. 335, 217; Story on Bailments, sec. 450, 582; Discon v. Hammond, 2 B. and Ald. 313).
    The defendants would not have been permitted to file a bill of interpleader (Crawshay v. Thornton, 2 M. and C. 1; S. C., 7 Sim. R. 391; Nicholson v. Knowles, 5 Madd. 47; Lowe v. Richardson, 3 Madd. 277; Cooper v. De Pastet, 1 Tam. R. 177; 2 Sto. Eq. Juris., § 816, 817, 812).
    HI. The proceedings in the Court of Common Pleas for Hampden County were not admissible evidence against the plaintiff; because,
    
      1. As between the parties to this action, the proceedings would not have been evidence against the defendants (1 Greenl. Ev. § 524).
    2. The papers showed that there had been no final judgment (1 Greenleaf, 529).
    IV. But if admissible, the alleged proceedings were not conclusive against the plaintiff.
    
      Dan'l Lord, H. G. De Forest, and John A. Weeks, for defendants,
    made and argued the following points—•
    The. defendants claim to set up the lawful title of Messrs. Grant and Ensign, from whom the goods in question were fraudulently taken by the plaintiffs ; Grant & Ensign having demanded the goods, and having indemnified the defendants against the plaintiffs’ claim.
    As to the defendants’ right to set up the title of Grant & Ensign—
    I. It is competent for the carrier to set up the rightful title of the time owner, from whom the possession has been fraudulently taken by the bailor, after notice by the true owner of his superior title.
    1. If the earner delivered the goods to the bailor, after notice from the true owner, he does so at his peril (Story on Bailments, 4th ed. § 102; Wilson v. Anderton, 1 Barn, and Adol. 450; Ogle v. Atkinson, 5 Taunt. 759; Taylor v. Plumer, 3 M. and Selw. 562; Hardman v. Wilcock, 9 Bingham, 382).
    2. The bailor cannot improve his title by a mere delivery to the carrier, and if his possession be originally tortious, it must remain so (Story on Bailments, § 281; Wilson v. Anderton, 1 Barn. and Adol. 450).
    3. There is no valid distinction, as related to the present case, between a tortious and a felonious taking by the bailor. As the felony must avoid the possession even of a bond fide purchaser, so the fraudulent taking can pass no title by the mere deposit with the carrier.
    4. It is the basis of the contract between the parties, that the bailor is lawfully possessed of the goods; and the innocent carrier should not be made to suffer by means of the bailor’s fraudulent misrepresentations, or concealment of his wrongful title.
    5. The policy of the general rule, as to setting up the jus tertii, is not impaired by the allowance of these exceptions to it, and on authority and principle they must be admitted (Shelbury v. Scotsford, Yelv. 23; Angell on Carriers, p. 336, and cases cited; see especially King v. Richards, 6 Whart. Penn. Rep. 418; Hardman v. Wilcock, 9 Bingham, 378).
    6. A bill of interpleader is not the proper remedy of the defendants in the present case, because the plaintiff and. Messrs. Grant & Ensign claim under independent and inconsistent titles.
    As to the effect of the judgment record—
    II. The judgment record, produced in evidence, is complete in itself as a final judgment, notwithstanding the writ of error pending at the time of the trial of this cause (Mass. Rev. Stat. chap. 82, § 6, § 12.)
    » HI. If the record was insufficient, it is enough that the defendants produce, upon this hearing, a new exemplification, showing that the judgment is now complete and final.
    IV. The judgment in favor of Grant & Ensign, in the Massachusetts suit, is conclusive against the title of the plaintiff to the goods in question; and conclusive as to his fraudulent taking of them: the judgment need not be specially pleaded (Miller v. Maurice, 6 Hall, 114).
    1. The judgment relates to the identical subject matter of this suit, and the issue was upon the fraudulent taking of the goods by Bates: this appears by an inspection of the judgment record.
    2. The defendants are the privies of Grant & Ensign, and defend this suit simply as their representatives, under their title and upon their indemnity (1 Greenleaf’s Evidence, § 523).
    3. If the plaintiff be allowed to recover in this action, Giant & Ensign will then be held liable to the defendants, under this ■ indemnity; and thus, in spite of the Massachusetts judgment, they will be compelled to pay, for the benefit of Bates, the value of the very goods adjudged to have been fraudulently taken from them by him.
   By the Court. Duer, J.

That a bailee cannot, in ordinary cases, dispute the title of his bailor, no more than a tenant that of his landlord, is familiar law, but we have not been able to discover that the rule applies with greater stringency to the relation between a common carrier and a shipper, than to any other form or species of bailment. The bill of lading, it is true, contains an admission of the ownership of the goods, and it contains also an admission of their actual shipment and of their sound condition. It appears, however, to be settled, that in neither of these cases does the admission operate as an estoppel. It is strong prima facie evidence of the truth of the facts to which it relates, but not conclusive (Berkely v. Watling, 7 Adol. and Ell. 29; Barret v. Rogers, 7 Mass. 297; Maryland Ins. Co. v. Ruden, 6 Cranch, 338).

The present case, therefore, stands upon the same ground as other bailments, in respect to which the general rule undpubt- ' edly is, that in an action by the bailor, a jus tertii, a right of property in a third person, cannot be set up by the bailee to defeat a recovery. But to this general rule there are many exceptions. The defendant in such a suit may doubtless show that the property had been taken from him by process of law, or by a person having a paramount title, or that the title of the bailor had terminated, or that he, the bailor, was himself a mere agent, and that, the return of the property to him had been forbidden by his principal (Shelby v. Scotsford, Yelv. 23; Edson v. Weston, 6 Cranch, 278; Ogle v. Atherson, 5 Taunt. 758; Watson v. Anderton, 1 Barn. and Ald., 450; Whittier v. Smith, 11 Mass. 211; Story on Bail. § 120, 266). Kor are these the only exceptions; we are strongly disposed to think that the right of thejrue owner may be set up, in all cases, where upon his demand, the property has been in fact delivered to him before the commencement of the suit^and are satisfied that such a delivery is an absolute bar, where it appears that the plaintiff had obtained possession of the property feloniously or tortiously, by felony, force, or fraud (Hardman v. Wilcock, 9 Bing. 382-4; King v. Richards, 6 Whart. Penn. R. 418; Story on Bail. § 582; Angell on Carriers, § 336). In Hardman v. Wilcock, this doctrine was expressly and with great decision, affirmed 'by two of the most eminent judges of the present day, Justices Alderson and Patterson, and was held to be entirely reconcilable with all the prior authorities, including most of those on which the plaintiff’s counsel in the present case has relied.

In King v. Richards, a case bearing a close analogy to the present, the same doctrine, nearly in the terms in which we have stated it, was made by the Supreme Court of Pennsylvania the ground of its decision, and was even applied to defeat the claim of an innocent plaintiff to whom a bill of lading of the goods in controversy had been assigned for value by the fraudulent shipper. In this last case Mr. Justice Kennedy, as the organ of the court, delivered an elaborate and able opinion, in which he reviews with acute discrimination all the English cases, and sustains the conclusion at which he arrives by reasons of unanswerable force; reasons that commend themselves alike to the judgment and the conscience. We cannot at all hesitate to follow those decisions. It would be a serious reproach to the administration of justice, if the principle which they sanction—a principle not only of sound policy but of sound and obvious morality—were not felt and acknowledged to be the law. Ho one can doubt that he to whom stolen goods have been delivered, is bound to return them to the true owner when satisfied by due proof of the justice of his claim, and when the fraud is established by similar proof the moral obligation is exactly the same.

It would be a shock to the most "ordinary sense of justice to permit the thief or the swindler, in such cases, to recover in a subsequent suit the value of the goods from the honest bailee. The rule which forbids a bailee to deny the title of his bailor, confined within its proper limits, is wise and salutary; but if no exceptions are to be allowed, it would deserve to be condemned, in numerous cases, as arbitrary and unjust; confined within its proper limits, it inculcates and enforces the observance of good faith; carried beyond these limits, it would be an encouragement and a protection to injustice, violence, and fraud.

The defence, therefore, which is set forth in the answers in this case, was justly held upon the trial to be valid in law, and the only question that remains is, whether the truth of this defence was conclusively established by the record of the judgment which was given in evidence. The Chief Justice so decided, and we are satisfied,' upon full consideration, that his decision, although not resting upon the authority of any case exactly similar in its circumstances, is sound in its principle, and as such must be sustained. It is true that a prior judgment is only conclusive when it appears that the same questions were litigated and determined in the suit in which it was rendered, and it may also be admitted that it is only conclusive between ’ parties and privies, and that the estoppel which it raises must be mutual in its operation. But if we mistake not, all these necessary conditions are fulfilled in the case before us.

The action of trover in which the judgment was rendered, related to the very goods now in controversy; the plaintiffs were Grant & Ensign, to whom, as owners, the goods have been delivered by the defendants, and the plaintiff here was the sole defendant. .The plaintiffs claimed to recover upon the grounds that they were the true owners of the goods at the very time they were shipped, and that the defendant had obtained the possession from then agent by collusion and fraud. The defendant denied their ownership, and asserted his own title as a purchaser in good faith and for full value from a person having the right to sell. The questions, therefore, of ownership and of fraud were directly at issue, and unless they had been determined in favor of the plaintiffs, they could not have obtained the judgment that was rendered. Exactly the same questions are raised by the pleadings in this case, and if this suit is substantially a suit between the same parties, or a privity has been shown to exist between the defendants and Grant & Ensign, it is impossible to deny that the judgment then rendered must be regarded as conclusive.

It is a- mistake to suppose that the term parties, in the sense of the rule which renders a prior judgment conclusive upon those who sustain that character, is restricted to those who are parties upon the record. On the contrary, it includes all who have a direct interest in the subject matter of the suit; a right to make a defence, or control the proceedings (1 Greenleaf on Evid., p; 523; Smith’s Lead. Cases; Duchess of Kingston’s case, 20 Howell State Trials, 538; Morgan v. Thorn, 9 Dowl. 228). Grant & Ensign were parties upon the record as well as in interest in the trover suit, and in this, although not parties upon the record, they are certainly parties in interest. It appears from the pleadings—for the allegations in the answers to that effect are not denied in the replies—that they have given to the defendants a satisfactory indemnity, and that upon the faith of that indemnity, the goods were surrendered and this suit is defended.

It is for them, therefore, that this defence is made; they have a direct interest in the result of the suit, and in consequence of that interest, have acquired a right to control its proceedings. We are therefore justified in saying that it is by them that this suit is in fact defended, and that they as parties have set up as against the plaintiff the same title which in the former suit they succeeded in establishing against him. The controversy is the same, and substantially the parties, and the prior judgment therefore conclusive.

Even were it granted that those only are to be deemed parties, in the sense of the rule, who are parties upon the record, it is certain that the indemnity which Grant & Ensign have given has created a privity between them and the defendants which authorizes and indeed renders it the duty of the defendants to set up, for their protection, the former judgment as a bar to the plaintiff’s recovery. It is said by Mr. Greenleaf, and our Supreme Court, in the case of Rapelye v. Bruce (4 Hill, 19), has so decided, that he who covenants for the results or consequences of a suit between others (and the indemnity here given is equivalent to such a covenant), by that act connects himself in privity with the proceedings so as to render the record of the judgment in that suit conclusive evidence against him (1 Greenleaf, p. 692, § 523). If Grant & Ensign, therefore, would be concluded by a judgment in favor of the plaintiff in this suit, that is, estopped from denying him to be the true owner of the goods in controversy, it would be most unreasonable to hold that they may not be aided by the defendants in barring his recovery, by setting up a former judgment, which concludes him from denying their title. There ought not to be two judgments directly in conflict upon the same question, and that conflict is only to be prevented by preventing the plaintiff from controverting the judgment that has been obtained against him.

The objection upon which the counsel for the plaintiff seemed greatly to rely, that the record of the proceedings in the former suit, had an opposite judgment been rendered, would not have been evidence against the defendants, has been answered by the observations already made. Such a record would have been conclusive evidence against the defendants upon the questions decided, exactly for the same reasons that the plaintiff is concluded by the record now produced. The defendants would be concluded by the privity that has been shown to exist between them and Grant &■ Ensign. It was admitted upon the argument that the judgment against the plaintiff has been affirmed upon a writ of error, and the objection, therefore, that the record produced did not show the judgment to be final, if not meant to be abandoned, must be considered as overruled.

For the reasons that have now been given, without entering upon other questions which our examination of the pleadings has suggested, the exceptions stated in the case to the ruling and charge of the Chief Justice are overruled, and the motion for a new trial denied with costs.  