ich probably is not practicable when such a quantity of iness has to be transacted, we hope he will find no difficulty ascertaining (with the aid of the parties, should he require the facts which were proved before him, and amending case. We think it right to add that we have the most sincere desire Rule to rescind the order of WATSON, B., dis- The case was again mentioned on the last day of this Term WHITEHEAD v. PROCTER (1). (3 H. & N. 532-533; S. C. 31 L. T. O. S. 205.) A county court Judge having refused to hear an interpleader summons, and ordered money to be paid out of Court, with costs to be paid by the claimant, on the ground of the insufficiency of the particulars, a rule was obtained, under the 19 & 20 Vict. c. 108, s. 43 (2), calling on the county court Judge to hear the summons. No cause being shown the COURT made the rule absolute; ordering the costs of the rule to abide the event of the interpleader issue, and discharging the claimant from the costs in the Court below. JOYCE had obtained a rule, under the 43rd section of 19 & 20 ct. c 108 (2), calling on the Judge of the county court at eat Driffield and the plaintiff, to show cause why the Judge ould not hear the interpleader summons issued in this plaint; d why the Court should not make such order with respect to sts in the interpleader and of this application as the Court ould think fit. It appeared from the affidavits that the stock in trade of e defendant Procter, having been seized under an execution (1) Churchward v. Coleman (1866) R. 2 Q. B. 18, 36 L. J. Q. B. 57; ge v. Collins (1867) L. R. 2 C. P. 1, 383, 36 L. J. C. P. 144; Richard- v. Wright (1875) L. R. 10 Ex. 367, 371, 44 L. J. Ex. 230. (2) Repealed, 51 & 52 Vict. c. 43, s. 188. See now s. 131 of the repealing Act. FURBER 2. STURMEY. [532] 1858. June 8. [532] ፖ. PROCTER. [ *533 ] WHITEHEAD Out of the County Court of Yorkshire, [the claimant] caused a notice of his claim to the goods under a deed of assignment to be served on the bailiff. The amount of the levy was paid into Court. The bailiff issued an interpleader *summons calling on [the claimant] to appear and state his claim, whereupon a particular with notice of claim was served on the Registrar, the high bailiff, and the execution creditor. On the hearing before the Judge, it was objected that the claim was insufficient, inasmuch as it did not contain particulars of the goods, as required by rule 130 of the rules and orders for regulating the practice of the county courts. The Judge held the objection good, and ordered the money to be paid out of Court to the execution creditor, with costs. The claimant then made a second application to the Judge to hear his claim, which was also dismissed with costs. * * * 1858. June 5. [534] No cause being shown, Joyce, in moving to make the rule absolute, asked the Court to exercise its discretion as to the costs of the application and the costs in the Court below ordered to be paid by the claimant. Per CURIAM: There is no ground for ordering the Judge to pay costs; the rule must be absolute; the costs of this application to abide the event of the interpleader issue, and, if payable to the claimant, to be paid by the plaintiff; and as to the costs ordered by the county court Judge to be paid by the claimant, let him be discharged from those costs. Rule accordingly. THORNE v. TILBURY (1). (3 H. & N. 534-540; S. C. 27 L. J. Ex. 407.) To an action of trover for goods, the defendants pleaded that the goods were delivered by the plaintiff to the defendants to be by them warehoused and taken care of that before the delivery the goods had been the property of one T. deceased, and that there was not at the time of the delivery any legal representative of the estate of T.; and that this fact was concealed from the defendants: that afterwards H. obtained letters of administration to the effects of T. and claimed the goods, and forbade the defendants to deliver them to the plaintiff Held a good plea. Semble, that a warehouseman being a bailee of goods is not estopped from disputing the title of his bailor; but that, if the goods are the property of another, he may refuse to redeliver them, if he does so relying upon the right and title and by the authority of that other. TROVER for trunks, boxes, wearing apparel, household furniture, &c. Plea, by way of defence upon (1) Rogers v. Lambert [1891] 1 Q. B. 318, 60 L. J. Q. B. 187, 64 L. T. 406; equitable grounds: That, before Biddle v. Bond (1865) 6 B. & S. 225, 34 L. J. Q. B. 137, 12 L. T. 178. e acts complained of were committed, the said goods were elivered by the plaintiff to the defendants, to be by them arehoused, kept and taken care of, and the same did not herwise come into the possession, custody, dominion, or convol of the defendants; and, before and at the time of the same eing so delivered to the defendants, the said goods were part f the goods and effects of one Peregrine Francis Thorne, then eceased, at the time of his death, who died intestate, and were ot, nor were any or either of them, the goods of the plaintiff, nd there was not then any legal representative of the estate nd effects of the said P. F. Thorne: that those facts were conealed from and not made known to the defendants, nor did they ave any notice or knowledge whatever thereof, or any reason or round to believe but that, at the time of the said goods being o delivered to them, the same were the plaintiff's, and they did ot ascertain or discover that they were not so until the times ereafter mentioned: that afterwards, and before the committing the acts complained of, and whilst the defendants had the aid goods under the said bailment thereof, one J. Huxham was uly constituted and appointed, and became and was, the lawful Iministrator of all and singular the goods, chattels *and effects I the said P. F. Thorne at the time of his death, and as such ecame and was the owner of the said goods, and the same ecame and were his as such administrator, and that, before the ommitting of the acts complained of, he claimed and demanded f the defendants the delivery up to him of the said goods, and ssumed the property thereof, and forbade them to deliver the me, or any of them, to the plaintiff, and threatened the defenants that they would be liable and responsible to the said J. [uxham if they did; wherefore the defendants detained the same com, and refused to deliver them up to, the plaintiff, and eprived him of the use and possession thereof; and which are he acts complained of. Demurrer and joinder. R. Vaughan Williams, in support of the demurrer: The defendants cannot set up the title of a third person gainst the person from whom they received the goods. (WATSON, B.: What answer would they have to an action of cover or detinue by the rightful administrator ?) hey might plead the bailment by the plaintiff. The ancient ractice as to garnishment is stated in Com. Dig. Pleader 2 X. 8). It is there said, "If A. bails goods of C. to B., in etinue by C. against B. he may plead bailment by A. to be edelivered to him, and pray that he may be garnished (1). If the (1) Citing Rich v. Aldred, 6 Mod. 216. THORNE v. TILBURY. [ *535 ] defendant prays garnishment, he ought to proffer the goods in Court. And the goods anciently remained in Court till the plea determined, but now they remain with the defendant till trial" (1). In Vin. Abr. Detinue, (C) pl. 7, it is said, "If my bailee delivers it again to me, he is not chargeable to others. who have a right to the thing" (2). The simple contract in the case of a bailment by deposit is that, *in consideration of the delivery, the depositee undertakes to redeliver to the depositor, and he cannot deny the title of the person who has entrusted him. In 2 Black. Com., p. 451, bailment is said to be "a delivery of goods in trust, upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee. . . . If a friend delivers anything to his friend to keep for him, the receiver is bound to restore it on demand." In Bac. Abr. Bailment (A) it is said, "If the goods of A. are bailed by B. to C., C. must deliver them to B., for B. cannot pretend to remove or alter that possession committed to him, in order to restore it to the right owner; for the right of restitution must be demanded of him that did the injury, of which C. has no pretence to judge." (POLLOCK, C. B.: That proposition is perfectly intelligible, but it is not law. Roll. Abr. Detinue, p. 607, which is there referred to as an authority for it, relates to a bailment by indenture, which is a different matter (3). In Roll. Abr. Detinue, (C) pl. 4, it is said, "Si mon bailée baile oustre al autre, jeo poin aver detinue vers second bailée " (4). That is quite inconsistent with the doctrine for which the plaintiff contends. Ogle v. Atkinson (5) is an authority against you.) The doctrine laid down in Ogle v. Atkinson on this point is doubted in a note to Story on Agency, s. 217 (6). (BRAMWELL, B.: In Parsons on Contracts (7), p. 677, it is said, "One question, in regard to the carrier's obligation to deliver goods to the shipper or consignor, has been much agitated, and perhaps is not quite settled. It arises in the case of another party claiming the goods as owner, and taking them in that character from the carrier? Will such taking excuse the *carrier for non-delivery? If the goods are demanded from him by a third party on this ground, can he detain the goods and justify his conduct? It is quite certain that the carrier cannot himself raise the question of title in a third person, and on that ground (1) Citing 1 Roll. Ab. 736, 1. 5. (2) Citing 7 Hen. VI., f. 22. (3) See per MARTIN, J., 3 Hen. VI. 44 b. (4) Citing 11 Hen. IV., 46 b. (5) 15 R. R. 647 (5 Taunt. 739), (6) Citing Gosling v. Birnie, 33 R. R. 497 (7 Bing. 339); Paley on Agency, 80, 81. (7) Boston, 1853. fuse delivery to the party originally holding them (1). And it undoubtedly the general rule that the carrier cannot deny the tle of the party from whom he has received the goods for ansportation. In general, no agent can defend against the etion of his principal by setting up the jus tertii in his own vour.") he bailee of goods stands in the same position with regard the bailor as an agent does to his principal, or a servant to is master. He cannot dispute the title of his bailor: Gosling v. irnie (2), Dixon v. Hamond (3). He is estopped from doing (POLLOCK, C. B.: HEATH, J., in Ogle v. Atkinson (4), points at the distinction between a case like this and the absolute ght of a landlord who has delivered possession of land to a nant to have it delivered back, which he says is peculiar to e action of ejectment. Now, although the Courts have since eld that the same doctrine applies in other actions, it does not tend to mere chattels. However, to the marginal note, that a warehouseman, receiving goods from a consignee, who has ad actual possession of them, to be kept for his use, may evertheless refuse to redeliver them if they are the property of nother," should be added, "if he defends upon the right and tle and by the authority of such other.") Cheesman v. Exall (5), MARTIN, B., said that there were umerous cases connected with wharfs and docks in which, if the arty entrusted with the possession were not estopped from denyg the title of the *party from whom he received it, it would e difficult to transact commercial business. (WATSON, B.: In the present case, at the time of the bailent, the bailor had a defeasible title; if he had obtained letters administration his title would have been confirmed. When nother person obtained letters of administration, the title of the ailor was defeated.) he defendants have not been compelled to give up the property o the claimant. In Roberts v. Bell (6) CROMPTON, J., said, “It ould be very dangerous if, in cases where bankers are pledgees f available property, such as bills of lading or bills of exchange, hey could deprive the pledgor of the use of his property by eeping it on account of a claim." (1) Citing an Anonymous case, tried efore Gould, J., and referred to aclouch v. Towle, 3 Esp. 114. (2) 33 R. R. 497 (7 Bing. 339). * * * 2 B. & Ald. 310. 15 R. R. 647 (5 Taunt. 759) THORNE v. TILBURY. [ *538 ] |