Thorp v. Burling — 11 Johns. 285

Majority

p. 285

Thorp against Burling and others.

NEWYORK,

August, 1814.

Headnote

Where a pergeoeraiproper§d¡ ™rs StheS keep8fofe him" ttahkee|°°* °.f the posses-agent by third persons, the person havín| property6 may o™ tróm" agah^t g°uch

Where J., a eartman,atthe request of went with him to the stable of £*• > and took goods there deposited,and put them on h?s cart, and carried them away, under circumstances sufficient to put him on hie guard, as to the legality of the taking of the goods, ifc was held that the eartman was equally liable with S.to an action of trover for the goods, at the suit of the owner.

THIS was an action of trover for two boxes of platillas, tried beibre Mr. Justice Yates at the New-York sittings, in April last,

The plaintiff, who is a merchant taylor in the city of New-York, and to whom the property in question belonged, employed a eartman to carry the two boxes of platillas to his shop, but not being able, on account of the size of the boxes, to get them in through the door of his shop or house, he requested ° r x the eartman, who was his nephew, to carry them to his own house, and keep them until the next day, when he would break up the boxes. The eartman, without the knowledge or direction of the plaintiff, put them in his stable, where he locked them up.

A clerk of Adamson, one of the defendants, with Burling, Duncan, and Roberts, three others of the defendants, applied to the police-office for a warrant to take the goods, as having been wrongfully taken from Adamson, but the warrant was refused. Two of the police-officers, however, went with Burling, Duncan, and Roberts, and the clerk of Adamson, to the stable where the goods were deposited, and one of the police-officers, at the request of one of the defendants, went for a eartman to take away the goods, and brought Woodruff, one of the defendants, a eartman, who took the goods on his cart and carried them to the store of Adamson, and delivered them there. Burling, Duncan, and Roberts, the other defendants, were present all the time, and countenanced the proceedings.

The plaintiff demanded the goods of Roberts, who said he knew nothing about them. No demand was made of Woodruff, or of the other defendants. It appeared, however, that when Woodruff went to take away the goods from the stable, there was a large assemblage of people there, and Roberts told a person, who was a witness in the cause, that he was present, and went with Burling and Duncan to seize the goods; and the witness strongly believed that Duncan told him the same thing.

The judge was of opinion, that the goods being at a stable, a place where they would not, in the ordinary course of business, be found, and a, large collection of people assembled there,

p. 286

Woodruff, the cartman, ought to have been on his guard, as to taking the goods, and that it was a tortious taking in him, and a conversion in itself, and that no demand was necessary to be Proved-

Adamson and Duncan being dead, a verdict for the plaintiff was found by the jury, against Roberts, Burling, and Woodruff

A motion was made to set aside the verdict, and for a new trial, and the case was submitted to the court without argument.

delivered the opinion of the court. There can be no doubt of the plaintiff’s right to maintain tracer in this case, so far as respects his title. Indeed, he could have brought trespass, for he had the general property in the goods, and gave only a bare authority to the first cartman to carry the goods to his own house, to keep until the next day. The first cartman had no interest or claim to hold the goods, coupled with his possession; and then the rule of law applies, that the general property draws after it the possession. The plaintiff was entitled to immediate possession when the trespass was committed. (1 Chittiy's Pl. 167. 7 Term Rep. 12.)

The only point worthy of consideration relates to the defendant Woodruff, and the question is, whether he is answerable in this action. I consider him as much a trespasser as the other defendants; he was one of the persons who removed the plaintiff’s goods from the place where they had been deposited by the plaintiff’s agent. It is true, he did this at the request of other persons, but he was by no means bound to obey their orders, or yield to their request. He was a voluntary agent, and an actor in an unlawful transaction. He could not but perceive that it was a hazardous enterprise, from the large assemblage of people at the spot.

I know of no protection afforded by the law to the defendant, as a cartman, on account of his public employment; he cannot claim the exemption of a ministerial officer, who has a warrant to do a lawful act from a magistrate, or court having jurisdiction to grant such warrant, in which case the officer would be bound to obey, and the law would protect him ; here, the defendant was not bound to obey, and he, consequently, acted at his peril. Had the other defendants actually reduced the

p. 287

goods to their possession, and had Woodruff then received the goods from them to carry, he would not have been liable. As the case stands, I think he certainly is responsible with the other defendants.

Motion for a new trial denied.