Olmstead v. Winsted Bank

Butler, J.* This case is submitted upon briefs. Upon a careful examination of them we are satisfied that the judgment is right and should not be disturbed. We assent to the claim of the plaintiff that the protest was not evidence of .the fact that the bills were-stolen, and constituted no objection to a recovery if they were not. It was evidence of notice that the bank claimed that they were stolen, and admissible upon the question of bona fides, and does not appear to have been admitted for any other purpose.. And we assent to the claim that the purchase of the bills at a discount did not constitute an objection to a fecovery in itself. But the offer to sell bank bills at less than the genuine bills of- the bank are selling in the market, is calculated to excite suspicion, to a greater or less extent according to cir [285] cumstances, and that fact also is admissible on the question of good faith. But it does not appear that any point was made upon that question on the trial. And we assent also to the claim that if the bills were in fact stolen, any holder not concerned in the theft, who came by them bona fide, in the regular course of business and for a valuable consideration, could recover upon them against the bank. But we do not assent to the proposition that such bona fide holder acquired an absolute property, which he could transmit to a purchaser who had knowledge that the bills were stolen, or were claimed to have been stolen from, and not issued by the bank. There are dicta which seem to sustain the last proposition of the plaintiff, but no decided case in point, and we are satisfied that the law ought not to be so. In the leading case of Miller v. Race, decided’ by Lord Mansfield in 1758, the first cited on the plaintiff’s brief, the action was trover for a bank note issued by the bank, and lost by the real defendant, and taken by the plaintiff bona fide in the course of business for a valuable consideration. That learned judge held, in an elaborate opinion reviewing all the earlier cases, that the plaintiff could recover from the defendant who withheld it as agent of the owner, on the ground that the plaintiff took the note as money in the course of business, without collusion or any ground of suspicion, for a .valuable consideration ; and because it is necessary to the currency of bank bills as money, that a bona fide holder of them who so takes them in the course of business shall be clothed with a title for his protection. ‘ But the opinion of Lord Mansfield does not go the length claimed by the plaintiff in this case. He held expressly that trover would lie in favor of the true owner against a finder before he had paid it away in currency, and impliedly that it would lie against a holder for valuable consideration who took it collusively, or under any circumstances of suspicion or unfair dealing ; and if that is so, the holder has not a title which he can confer upon one who does not take himself bona fide, without cause for suspicion, for a valuable consideration and in the course of business. The [286] real title remains in the true owner, and does not accompany the bill, and is not obtained by the finder or the thief, but the law on principles of policy confers upon the bona fide holder such equitable title as is necessary for his protection. He may collect the note of the bank, or pay it bona fide in currency; but his title is limited to the necessities of the case, and does not pass to another, who takes it with knowledge or cause of suspicion in respect to the real and equitable character of the holder’s title. The next case cited on the plaintiff’s brief is Peacock v. Rhodes, (Douglass, 683,) decided by Lord Mansfield in 1781. That was an action on a bill of exchange which had been stolen and negotiated to an innocent indorsee, and the principles enunciated by him in Miller v. Race, were so far as applicable re-affirmed. The third case cited in the order of time, is Collins v. Martin, (1 Bos. & Pul., 648,) decided in the common pleas in 1797. That too was trover for endorsed bills of exchange, wrongfully pledged for a valuable consideration by the person with whom they were deposited. There too the .same principles were applied and the same distinction between endorsed bills of exchange or bank notes and other property, founded on the necessity of recognizing an equitable title in. the bona fide holder to preserve their negotiability, is recognized, and the doctrine is pointedly stated to be, that a holder for value who receives them in the course of business may say to the real owner when he demands them, “ You have the title, but you shall not be heard in a court of justice to enforce it against good faith and conscience.” Chief Justice Eyre in that case, and in an elaborate opinion, often referred to with approbation, and in the language quoted, founds the title of the holder upon an equitable estoppel, and that doctrine is in harmony with the decisions of Lord Mansfield, the current of authority and the analogies of the law. Another case cited by the plaintiff is King v. Milsom, 2 Campb., 5. That was trover for a lost bank note, not against the finder, but a bona fide holder for a valuable consideration, and the holder retained it. There is nothing in the decision, [287] or the-opinion of Lord Ellenborougli in the case, in conflict with the doctrines settled in Miller v. Race and Collins v. Martin. The plaintiff also cites Chitty and Bayley on bills, but we find no dicta in them, or in any other decided case, irreconcilably conflicting with the doctrine of Lord Mansfield, or which are deserving of serious consideration; and we are satisfied that a bona fide holder of a lost or stolen bank bill or endorsed bill of exchange has not the absolute, perfect and transferable title of a real owner, but an equitable title by estoppel, created by usage, and protected by the law, because necessary to the perfect negotiability of such paper, but in conflict with the undivested rights of the true owner, and recognized and protected no farther than that necessity requires. Such being the. law in respect to the title of a holder of a lost or stolen bill, and the court having found that these bills were stolen from the bank, and that the defendants are the true owners of them, and that the plaintiff took them with protest attached and notice that they were claimed by the bank as their property and because they were stolen, it is apparent that the plaintiff can never recover, and that substantial justice has been done, whether there was or was not error in the ruling of the court in respect to the admissibility of evidence. But we discover no error in that ruling. It is elementary law that a party shall not be permitted to attack, by evidence of general reputation, the credibility of his own witness. On the other hand it is equally well settled, that if his. witness testifies in respect to a particular fact contrary to what he believes to be true, he may prove the fact to be otherwise by other competent testimony, however much the particular contradiction may tend to discredit the witness generally. The extent to which a contradiction in respect to a particular fact will show the witness unworthy of belief generally, can not be relied upon as a guide in respect to the admissibility of such testimony. The only safe and practicable distinction therefore, and that which is generally adopted, is between an impeachment generally and a contradiction in respect to a particular fact, and the court. below were correctly governed by it. [288] A new trial is not advised. In this opinion tlie other judges concurred; except MoCurdy, J., who having tried the case in the court below did not sit.. Footnotes [*] This case having been submitted on briefs, Judge Butler took part in its decision, though not present at the term.