¶1 Notwithstanding these arguments, the plaintiff has a right to recovery. Hughes had purchased the property that B had, and was in possession, and is to be considered as having a special property until a better could be shown; and no one but the rightful owner could interfere with his possession, or lawfully deprive him of it. This is an advantage which should not be taken from him by a third person.
¶2 Verdict and judgment for plaintiff.
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Case posture Posture THE case was: A intrusts the horse to B for a particular purpose; B remains at Salisbury some time, and contracts debts with several persons, and gives a bill of sale for the horse to Hughes, and also to one Brem; his sale to Hughes is prior to the date of the bill of sale to Brem. Brem by some means gets possession of the horse from Hughes, who had him, and sells to Giles. And now, amongst other things, it was insisted for Giles that Hughes ought not to have a verdict against him and recover damages, for that a recovery by Hughes, who was not the proprietor, would be no bar to A to hinder him from bringing his action at a future day against Giles, and recovering also. The books indeed say that he who has a special property may recover in this species of action, as in the case of a carrier, bailee, or finder, a sheriff who has seized goods in execution, or the like; but the reason is that those persons are liable over for the goods to a third person, and they are allowed this action in order that they may have it in their power to indemnify themselves by recovering against the wrongdoer that value which they have to pay to the owner; and it is because they are entitled to recover that they are said to have a special property. But surely if the carrier, bailee, etc., voluntarily sell or dispose of the property, they cannot afterwards maintain an action for it. They are estopped by their own act; but yet their sale conveys no
property, because they had none themselves; and in order to convey an interest or property by sale, the vendor must have the general or absolute property. A special property only enables him to sue a wrongdoer, not to convey the property; because in so doing he commits a breach of trust, unless where he has the property for the purpose of selling it, as in the case of the sheriff, and then what he does is only good by virtue of his authority. That the conveyance of such persons in general conveys no property is proved by this, that if the carrier, bailee, or finder sells it, his vendee is liable to the action of the owner; but in this case B, who sold both to Hughes and Brem, though he is liable to A's action, yet he cannot recover against either of them; because as to him they are neither of them wrongdoers; and surely the plaintiff Hughes cannot be said to have a special property, that comes only by the delegation of the owner, and potestas delegata non potest delegari . This is not in the circumstances of a carrier, bailee, etc., or of any of those persons who are liable over by means of a trust; and as there is no such liability over in his case, there is no reason why the law should give him an action to recover against the defendant. If he should not recover, he can never be charged by A. What reason, then, is there to say he ought to recover, when he has not the general property, and when there is no necessity that he should be deemed to have a special one in order to his own indemnification? Source: CourtListener
