Thorp v. Burling

Seekceb, J. 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 [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.