Kennedy v. Strong

Thompson, Ch. J., delivered the opinion of the court. The questions are, 1. Whether the plaintiff had any property in the merchandise, it being shipped contrary to the non-intercourse act; and, 2. As to the rule of damages, if the plaintiff is entitled to recover any thing. 1. I am inclined to think the defendant is precluded by his admissions in his affidavit, and otherwise, from denying the interest of the plaintiff in the goods in question. Those admissions were made after the property of the plaintiff must have been devested by the forfeiture, if ever it was so ; and the property was taken into possession by the defendant as the goods of the plaintiff; and I do not see why the defendant ought not to be estopped, by such admissions, from denying the plaintiff’s title, as much in a chattel as in lands. Although the property might once have been devested by the forfeiture, who can say but the plaintiff had, by some means, reinvested himself with the right, or procured a dispensation of the forfeiture ? It would be unjust to permit the defendant to set up a title in a third person, after having acknowledged the plaintiff’s right, and received the goods as his. It would operate as a surprise upon the owners of goods to permit their agents or factors to set up such a defence. In the case of Fontaine v. The Phœnix Ins. Co., (11 Johns. Rep. 300.,) there were no acts of the defendants by which they were precluded from setting up property in a third person; and if, in this case, the defendant had not, by his admissions, fully recognized the plaintiff as owner51 see no objections against his setting up the. [132] In trover, the defendant may show prop~rty in a third person. 2~ The discharge of the defendant unclerthe insolvent act of 1 Si I did not reach this demand, it being founded on a tort. 3. The rule of damages, I think, ought to be the value of the ■goods at the Havanna at the time of the conversion. The of instructions did not limit the defendant as to price. He was to sell, at all events, for what they would command. His pledging the goods was the wrongful act which constituted the conversion ; and it is a general rule in trover that the measure of damages is the value of the property at the time of the The plaintiff is, accordingly, entitled to judgment for 1,972 dollars. Judgment for the plaintiff " Footnotes [‡] 11 Johns. Rep. 393.