No. 2.—Biddle v. Bond, 34 L. J. Q. B. 140. — Notes.

sort depending upon the interest." In Wilson v. Anderton, Littledale, J. (without referring to Shelbury v. Scotsford, but evidently having it in his mind) states the law to the same effect. And accordingly in Hardman v. Willcock, in Cheesman v. Exall, and in Sheridan v. The New Quay Company, a bailee was permitted, under circumstances similar to the present, to set up the jus tertii. It is true that in the first two of these cases the plaintiffs had obtained the goods by a fraud upon the person whose title was set up, whilst in the present case there is nothing in the evidence to show that the plaintiff, though a wrong-doer, did not honestly believe that he had the right to distrain. But we do not think that this circumstance alters the law on the subject. The position of the bailee is precisely the same, whether his bailor was honestly mistaken as to the rights of the third person, or fraudulently acting in derogation of them. We think that the true ground on which a bailee may set up the jus tertii is that indicated in Shelbury v. Scotsford, viz., that the estoppel ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount. It is not enough that the bailee has become aware of the title of a third person. We agree in what is said in Betteley v. Reed, that " to allow a depositary of goods or money, who has acknowledged the title of one person, to set up the title of another who makes no claim or has abandoned all claim, would enable the depositary to keep for himself that to which he does not pretend to have any title in himself whatsoever." Nor is it enough that an adverse claim is made upon him, so that he may be entitled to relief under an interpleader. We assent to what is said by POLLOCK, C. B., in Thorne v. Tilbury, 3 H. & N. at p. 537; 27 L. J. Ex. 407, that a bailee can set up the title of another only "if he defends upon the right and title and by the authority of that person." Thus restricted, we think the doctrine is supported both by principle and authority, and will not be found in practice to produce any inconvenient consequences. Rule absolute.

ENGLISH NOTES.

In Kingsman v. Kingsman (C. A. 7 Dec. 1880), 6 Q. B. D. 122, 50 L. J. Q. B. 81, there was a difference of opinion in the Court of Appeal whether the rule in Biddle v. Bond could be applied to the receipt by an agent of rents of leaseholds after marriage of the lady to

No. 2. Biddle v. Bond. Notes.

whom the leaseholds belonged. The plaintiff was a woman married in New Zealand in 1875. The husband at the time of the marriage was a minor, and had agreed to settle her property including these leaseholds upon her. The husband had deserted the plaintiff and never claimed these rents. The Court held the settlement void by reason of infancy, and therefore that the rents belonged to the husband. BRETT, L. J., considered that the agent, as he did not defend upon the right and title and by the authority of the husband, could not defend himself against the claim of the plaintiff to the rents. But the majority (SELBORNE, L. C., and BAGGALLAY, L. J.,) held that the rule in Biddle v. Bond did not apply. They considered that the agent having notice of the marriage was in the same position as if there had been an assignment of the property of which he had notice. The ground, apparently, was that the agency on the part of the wife had been determined before the receipt, so that he did not receive the rents as bailee for the wife.

In Ex parte Davies, In re Sadler (C. A. 24 Nov. 1881), 19 Ch. D. 86, it was held by the Court of Appeal that, though in certain cases a bailee may set up the jus tertii, yet if he accepts the bailment with full knowledge of an adverse claim he cannot afterwards set up the existence of the claim as against his bailor. So that where an auctioneer had sold goods under the instructions of the trustee in bankruptcy of A., having previously received possession of them and undertaken to sell them for a bill of sale holder, B., he cannot set up B.'s title against the claim of the trustee to receive the proceeds of the sale. The case was distinguished from Biddle v. Bond, on the ground that the agent had elected to accept the bailment of the trustee with full knowledge of the claim of the other; whereas in Biddle v. Bond there was no such election.

Rogers & Co. v. Lambert & Co. (10 Feb. 1890), 24 Q. B. D. 573, 59 L. J. Q. B. 259 (C. A. 6 Dec. 1890), 1891, 1 Q. B. 318, 60 L. J. Q. B. 187, was an action for wrongful detention of certain copper which had been bailed by the plaintiffs to the defendants as warehousemen. The defendants pleaded a denial of the plaintiff's property in the copper, and to establish that defence sought to administer to the plaintiffs an interrogatory "Whether after the bailment of the copper to the defendants the plaintiffs had not sold it to M. & Co." It appeared that the defendants' object in defending the action was to enable them, on the copper being claimed by M. & Co., to set up a counter-claim against that firm. The Court (DENMAN, J., and WILLS, J.,) held that, as the defendants did not claim to defend upon the right and title of M. & Co., but in order to set up a claim in their own interest, they were, under the rule in Biddle v. Bond, estopped from disputing their

No. 2. - Biddle v. Bond. - Notes.

bailor's title; and therefore that the proposed interrogatories were inadmissible. On the trial of the action before DAY, J., it was admitted that, before the action, the plaintiffs had sold the copper to M. & Co., who had paid them the price, and had indorsed the delivery order to M. & Co.; but it appeared that the delivery orders had not been pre'sented to the defendants, and before action the plaintiffs had given notice to the defendants that they cancelled the indorsements of the delivery orders and required the defendants not to deliver the copper except to themselves. DAY, J., gave judgment for the defendants. On appeal, the Court (Lord ESHER, M. R., LINDLEY, L. J., and LOPES, L. J.,) reversed this judgment. The Court unanimously held the law to be established by the considered judgment of the Court of Queen's Bench in Biddle v. Bond; and that as the plaintiffs were not defending upon the right and title, or by the authority, of M. & Co., but were admittedly defending for themselves and in their own interest, the defence failed; and judgment was given that, as between the plaintiffs and the defendants, the plaintiffs were entitled to the copper, and the defendants must pay the costs of the action.

But as the plaintiffs consented, in order to avoid further litigation, to allow the proceeds of the copper which had been sold to be brought into Court, this was ordered to be done, and notice was ordered to be given to M. & Co., and all other persons claiming an interest in it. It was observed by LINDLEY, L. J., that the proper course for the defendants, as soon as there were several rival claimants to the copper, would have been to institute interpleader proceedings; and that since the C. L. P. Act 1860 (under s. 12), such proceedings would have been competent, notwithstanding the contract of bailment. For this he cited Attenborough v. The London and St. Katherine's Docks Co. (C. A. 1878), 3 C. P. D. 450, 47 L. J. C. P, 763, and Robinson v. Jenkins (C. A. 1890), 24 Q. B. D. 275, 59 L. J. Q. B. 147.

AMERICAN NOTES.

A bailee is not permitted to dispute the title of his bailor, but he may show that the bailor has assigned his title to another since the property was intrusted to him. If legally assigned, and the bailee has notice of the fact, the bailee must account to the assignee. The rule that a bailee should not attorn to a stranger does not apply, for the assignee is not a stranger. Roberts v. Noyes, 76 Maine, 590; Marvin v. Ellwood, 11 Paige (New York Chancery),

376.

"It seems to be now well settled that a bailee is estopped from disputing the title of his bailor and setting up the jus tertii, unless the bailment has been determined by what is equivalent to an eviction by title paramount; and then he may." Story on Bailment, § 582, 8th edition, note. Citing the principal case and Gerber v. Monie, 56 Barbour (New York Supreme Ct.), 652.

No. 2.- - Biddle v. Bond. - Notes.

So when the goods are taken from a carrier by legal process against a third person, although he is not the true owner. Stiles v. Davis, 1 Black (U. S. Supreme Ct.), 101; Wareham Bank v. Burt, 5 Allen (Mass.), 113; Bliven v. Hudson R. R. Co., 36 New York, 403. So where a borrowed horse was taken by government cavalry officers. Watkins v. Roberts, 28 Indiana, 167. Where a bailee is held in trover by the real owner and compelled to pay the value of the goods, that is a valid defence to an action by the bailor. Cook v. Holt, 48 New York, 275.

Edwards says (Bailment, § 73): "For nothing will excuse a bailee from the duty to restore the property to his bailor except he show that it was taken from him by due process of law, or by a person having the paramount title, or that the title of the bailor has terminated. By surrendering the property on demand to a third party, the bailee assumes the burden of establishing the title he thus acknowledges." Supported by Bates v. Stanton, 1 Duer (New York Superior Ct.), 79; Van Winkle v. U. S. M. S. Co., 37 Barbour (New York Supreme Ct.), 122; Burton v. Wilkinson, 18 Vermont, 186; Aubery v. Fiske, 36 New York, 47; McKay v. Draper, 27 New York, 256; Sinclair v. Murphy, 14 Michigan, 392; Osgood v. Nichols, 5 Gray (Mass.), 420 (auctioneer); Pulliam v. Burlingame, 81 Missouri, 111; Roberts v. Stuyvesant Safe Dep. Co., 123 New York, 57. "A bailee cannot avail himself of a third person (though the person be the true owner) for the purpose of keeping the property for himself, nor in any case where he has not yielded to the paramount title." The Idaho, 93 United States, 575.

"When property in the custody of a bailee for hire is demanded by third persons, under colour of process, it becomes his duty to ascertain whether the process is such as requires him to surrender the property, and if it is not, then it is his right and duty to refuse, and to offer such resistance to the taking, and adopt such measures for reclaiming it, if taken, as a prudent and intelligent man would, if it had been demanded and taken under a claim of right to the property by another without legal process. We do not think that

the mere levy of an execution or attachment upon the property by a creditor of the owner while it is in the possession of the tort-feasor is available as a defence or in mitigation." Roberts v. Stuyvesant, &c. Co., supra. That was a case where officers with a search-warrant demanded property in the keeping of the defendant, and the latter without demanding to see the warrant, or notifying the plaintiff, who lived near, pointed out the plaintiff's box, and the officers broke it open, and took away bonds, and while they were in possession of the prosecuting government attorney, they were attached by the plaintiff's creditors. The English doctrine, which in the case of a pledge by a symbolical delivery, requires an attornment by the warehouseman or other custodian of the goods in order to create such a delivery as will support the pledge, does not prevail in this country. Conrad v. Fisher, 37 Missouri Appeals, 352; 8 Lawyers' Reports Annotated, 147.

AN auctioneer has a possession coupled with an interest in goods which he is employed to sell; and may maintain an action against the buyer for goods sold and delivered, although the sale was at the house of a third person and the goods known to be his property.

Williams v. Millington.

1 H. Bl. 81-86 (s. c. 2 R. R. 724-726).

The plaintiff was an auctioneer employed by C. to sell his goods at his own house by auction. The defendant by a trick obtained possession of the goods leaving a balance of the price unpaid. The plaintiff paid the whole price to C., and brought his action for the balance, as for goods sold and delivered to the defendant.

Lord LOUGHBOROUGH in delivering judgment said: I en- [84] tertain no sort of doubt on the general question being extremely clear, that an auctioneer has a possession, coupled with an interest, in goods which he is employed to sell, not a bare custody like a servant or shopman. There is no difference, whether

*

the sale be on the premises of the owner, or in a public [* 85] auction-room, for on the premises of the owner, an actual possession is given to the auctioneer and his servants by the owner, not merely an authority to sell. I have said a possession coupied with an interest: but an auctioneer has also a special property in him with a lien for the charges of the sale, the commission, and the auction-duty, which he is bound to pay. In the common course of auctions, there is no delivery without actual payment; if it be otherwise, the auctioneer gives credit to the vendee, entirely at his own risk. Though he is like a factor therefore in some instances, in others the case is stronger with him than with a factor, since the law imposes the payment of a duty on him, and the credit in case of a delivery, without the recompense of a commission del credere. It is