1865. BIDDLE V. BOND. ference. [They cited Allen v. Hopkins (a), and Rodgers v. Maw (b).] In Betteley v. Read (c) the defendant was not allowed to set up the jus tertii because the third person had abandoned his claim. In Story on Bailments, 7th ed., § 102, it is said that the doctrine, that the bailee to whom goods have been committed may not deliver them to any other person than his bailor, "" was probably limited to cases where the bailor came to the possession of the goods by right; for if he came to them by wrong, it would seem that the owner might reclaim them from any person in whose possession they were found. But the doctrine itself may now justly be deemed overruled; and the right of the owner to recover his property in all cases, against a person having no title, whether a bailee or not, and whether a first or second bailee, seems now fully established in our law, upon the plain reason, that the bailee can never be in a better situation than his bailor. If the latter has no title, the real owner is entitled to recover the property, in whose hands soever it may be found." Cur. adv. vult. BLACKBURN J. now delivered the judgment of the Court. (After stating the facts.) The question comes to be whether under such circumstances the defendant can set up the jus tertii or not. We are of opinion that he can do so, and, consequently, that the rule to enter the verdict for the defendant must be made absolute. (a) 13 M. & W. 94. (b) 15 M. & W. 444. (c) 4 Q. B. 511. We do not question the general rule that one who has received property from another as his bailee or agent or servant must restore or account for that property to him from whom he received it; and we agree with what is said by my brother Martin in Cheesman v. Erall (a), that "there are numerous cases in connection with wharfs and docks, in which, if the party entrusted with the possession of property were not estopped from denying the title of the person from whom he received it, it would be difficult to transact commercial business." But the bailee has no better title than the bailor, and, consequently, if a person entitled as against the bailor to the property claims it, the bailee has no defence against him; Wilson v. Anderton (b). Such was the position of the defendant in the present case. If Robbins had chosen to sue him in trover, or, waiving the tort, had sued for money had and received, the defendant would have had no defence. He was therefore compelled to yield to Robbins's claim, and it would certainly be a hardship on him if, without any fault of his own, the law left him without any defence against the plaintiff for so yielding. We do not however think that such is the law. Several cases were cited on the argument at the bar, and more might have been cited, such as Stonard v. Dunkin (c), Gosling v. Birnie (d), Hawes v. Watson (e), in which a bailee, who by attorning to a purchaser of the goods in effect represented to him that the property has passed to him (though such was not the fact), and thereby induced him to alter his position and pay the price to his vendor, has been held (a) 6 Exch. 341. 346. (e) 2 Camp. 344. (b) 1 B. & Ad. 450. (d) 7 Bing. 339. (e) 2 B. & C. 540. 1865. BIDDLE V. BOND. 1865. BIDDLE V. BOND. estopped from denying the property of the person to whom he has thus attorned by setting up a title in a third person inconsistent with the representation on which he had induced the plaintiff to act. We in no way question that those cases were rightly decided. But in all of them the estoppel proceeded on the representation, which was analogous to a warranty of title for good consideration to the purchaser. Now in the ordinary class of bailments, such as the present, the representation is by the bailor to the bailee that he may safely accept the bailment; and, so far as any weight is to be given to the representation, it makes against the estoppel. This is pointed out by Parke B. in Cheesman v. Exall (a) in the case of a pledge, and is indicated as one of the grounds on which the judgment of the Common Pleas proceeded in Sheridan v. The New Quay Company (b), which was the case of a carrier. The position of an ordinary bailee, where there has been no special contract or representation on his part, is very analogous to that of a tenant who, having accepted the possession of land from another, is estopped from denying his landlord's title, but whose estoppel ceases when he is evicted by title paramount. This was decided as early as the 44 Eliz. in Shelbury v. Scotsford (e). There the plaintiff sued in assumpsit against the bailee of a horse for the breach of his contract to redeliver it. The defendant pleaded that J. S., the true owner of the horse, took it from him. After verdict for the defendant, the plaintiff moved in arrest of judgment; "but by Fenner and Yelverton, contrà; for the matter alleged by the defendant does in law discharge the (b) 4 C. B. N. S. 618. (a) 6 Exch. 341. 344. (c) Yelv. 22. promise by reason of the former property of the horse in J. S.; and then it is as an eviction of the horse out of the defendant's possession, which discharges the promise, as well as an eviction of the lessee for years discharges all rents, bonds and covenants in any sort depending upon the interest" (a). In Wilson v. Anderton (b) Littledale J. (without referring to Shelbury v. Scotsford (a), but evidently having it in his mind,) states the law to the same effect. And accordingly in Hardman v. Willcock (c), in Cheesman v. Exall (d), and in Sheridan v. The New Quay Company (e), a bailee was permitted under circumstances similar to the present to set up the jus tertii. It is true that in the two first 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 shew 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 (a), 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 (a) Yelv. 22, 3rd ed. translated. (b) 1 B. & Ad. 450. 457. (c) Note (a) to White v. Bartlett, 9 Bing. 382. (d) 6 Exch. 341. (e) 4 C. B. N. S. 618. 1865. BIDDLE v. BOND. 1865. BIDDLE V. BOND. in Betteley v. Reed (a), 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 (b), 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. (a) 54 Q. B. 511. 517. (b) 3 H. & N. 534. 537. |