tarily yielding his right to file his claim for the purpose of taking a dividend from the avails of the assets of the bankrupt; and the debtor being also content to have the demand unaffected by the proceedings in bankruptcy; the result will be that a new debt is created, which is not affected by the discharge in bankruptcy. It is undoubtedly true, that to some extent and for some purposes, it is allowable to go behind a judgment, and inquire as to the original indebtedness, and this may have a decisive effect upon the rights of the parties. The case of Betts v. Bagley, 12 Pick. 572, cited by the counsel for the defendant, is an instance of such inquiry, and a case where effect was given to the original cause of action. The judgment in that case was rendered long before the application for a discharge or any proceedings in reference to the same. It was important to show the jurisdiction of the tribunals of New York, in reference to the case and the parties, and it appearing that the original debt was contracted in that state, this was held sufficient to subject the demand, which was a suit upon a judgment, to the insolvent laws of New York.

The English decisions, to some extent, are apparently conflicting with the view which we have taken of the present case. To what extent, it is somewhat difficult precisely to understand. In the case of Robinson v. Vale, 2 Barn. & Cress. 762, it was held, that the debt was provable, although in a judgment; but here the judgment was before the commission of bankruptcy issued. The case Ex parte Birch, reported in 4 Id. 880, and also in 7 Dow. & Ry. 436, 442, is a case more in point to show that a judgment, rendered after the commission of bankruptcy, is yet provable as a debt chargeable upon the assets of the bankrupt. The judg ment was in fact rendered three days after the date of the commission, and the debt was held provable, but the grounds of the decision are not stated. It may have been decided upon the ground urged by one of the counsel, that a judgment there always relates to the first day of the term, which period would be found. prior to the issuing of the commission; or it may have been founded upon the peculiar language of the statute of 46 Geo. III., c. 135," after the act of bankruptcy," etc. The act of bankruptcy is the private act of the debtor, and may not at the time be known to the creditor, so that he can discontinue his action and waive taking a judgment; while our statute relates to all debts existing at the time of the publication by the messenger, which is a public event known to the creditor, so as to enable him seasonably to regulate his future course as to a suit then pending.

However that may be, we see no sufficient reason for not applying the same principle by anything settled in the law of Sampson v. Clark, 2 Cush. 173, before cited.

The petition in bankruptcy having been filed on the ninth of December, 1842, and the judgment, which is the foundation of the present claim, having been rendered subsequently, although the original action was commenced prior to the filing of the petition in bankruptcy, such judgment does not constitute a debt or demand, which could be proved and allowed by the commissioner in bankruptcy, and the discharge of the said Perkins, by virtue of said proceedings, does not apply to a judgment rendered after the filing of the petition in bankruptcy. Such being the character of the demand sought to be enforced in the present action, the ruling of the court of common pleas

was erroneous.

Exceptions sustained, and a new trial ordered in this court.

JUDGMENT RECOVERED AGAINST INSOLVENT AFTER PETITION in bankruptcy, but before decree or discharge, is not barred by the discharge: Haggerty v. Amory, 7 Allen, 460; In re Gallison, 5 Nat. Bank Reg. 354, citing the prin cipal case. See to the same effect, Fisher v. Foss, 30 Me. 459; Pike v. McDonald, 32 Id. 418.

SIMPLE CONTRACT DEBT IS MERGED IN JUDGMENT therefor: See Wann v. McNulty, 43 Am. Dec. 58, and note. The principal case is cited and approved on this point in Handrahan v. Cheshire Iron Works, 4 Allen, 396; Wolcott v. Hodge, 15 Gray, 548, and Bradford v. Rice, 102 Mass. 473.

ROBINSON V. BAKER.

[5 CUSHING, 137.]

COMMON CARRIER HAS NO LIEN FOR FREIGHT ON GOODS RECEIVED FROM WRONG-DOER without the owner's consent, express or implied, as against such owner, although they were innocently received.

REPLEVIN for a quantity of flour, purchased by the plaintiff at Buffalo, in New York, and shipped on a boat of the Old Clinton line to Albany, to be delivered to the Western Railroad Company, to be shipped by them to the plaintiff at Boston. The agent of the Western Railroad Company declined to receive the flour, on being informed of its arrival, though it was not actually tendered to him, and said that the boat must take its turn after certain other boats waiting to deliver goods to that com、 pany; and the agent of the Old Clinton line then shipped it by the Albany and Canal line to New York, and the latter company shipped it thence by the defendant's boat to Boston, to be deliv

ered to the plaintiff on payment of freight. The defendant, having carried it to Boston, refused to deliver it except upon payment of the freight, claiming a lien therefor, and the plaintiff brought this action. The evidence tended to show that the diversion of the course of the flour by the Old Clinton and Albany and Canal lines was without the plaintiff's consent; but it is unnecessary to state this evidence, or the instructions requested or given, except to say, that the judge ruled that if the defendant received the flour in good faith, and in the ordinary course of business, for shipment to the plaintiff, in ignorance of the contract of the plaintiff with the Old Clinton line, and of the fact that the flour was to have been shipped from Albany to Boston by the Western railroad, he was entitled to a lien for his freight thereon. The correctness of this instruction was the only question considered in the supreme court. The question was submitted to the jury as to whether or not the agent of the Western Railroad Company authorized the shipment by way of New York, and the jury found that he did not. Judgment was to be entered for the defendant, if the instructions were correct. Otherwise for the plaintiff.

C. B. Goodrich, for the plaintiff.

B. R. Curtis, for the defendant.

By Court, FLETCHER, J. (after stating the facts, the instructions requested, and the instructions given). As the ruling of the judge, that the defendant, as a carrier, had a lien for his freight, was placed upon grounds wholly independent of any rightful authority in the agents of the Old Clinton line and the Albany and Canal line, to divert the goods from the course in which the plaintiff had directed them to be sent, and to forward them by the defendant's vessel, and wholly independent of the plaintiff's consent, express or implied, the simple question raised in the case is, whether if a common carrier honestly and fairly on his part, without any knowledge or suspicion of any wrong, receives goods from a wrong-doer without the consent of the owner, express or implied, he may detain them against the true owner, until his freight or hire for carriage is paid; or to state the question in other words, whether if goods are stolen and delivered to a common carrier, who receives them honestly and fairly in entire ignorance of the theft, he can detain them against the true owner, until the carriage is paid.

It is certainly remarkable, that there is so little to be found in the books of the law, upon a question which would seem

likely to be constantly occurring in the ancient and extensive business of the carrier. In the case of Yorke v. Grenaugh, 2 Ld. Raym. 860, the decision was, that if a horse is put at the stable of an inn by a guest, the innkeeper has a lien on the animal for his keep, whether the animal is the property of the guest or of some third party from whom it has been fraudulently taken or stolen. In that case, Lord Chief Justice Holt cited the case of an Exeter common carrier, where one stole goods and delivered them to the Exeter carrier, to be carried to Exeter; the right owner, finding the goods in possession of the carrier, demanded them of him; upon which the carrier refused to deliver them unless he was first paid for the carriage. The owner brought trover, and it was held, that the carrier might justify detaining the goods. against the right owner for the carriage; for when they were brought to him, he was obliged to receive them, and carry them; and therefore since the law compelled him to carry them, it will give him a remedy for the premium due for the carriage. Powell, J., denied the authority of the case of the Exeter carrier, but concurred in the decision as to the innkeeper. There is no other report of the case of the Exeter carrier to be found. Upon the authority of this statement of the case of the Exeter carrier, the law is laid down in some of the elementary treatises to be, that a carrier who receives goods from a wrong-doer or thief, may detain them against the true owner until the carriage is paid.

In the case of King v. Richards, 6 Whart. 418 [37 Am. Dec. 420], the court, in giving an opinion upon another and entirely different and distinct point, incidentally recognized the doctrine of the case of the Exeter carrier. But until within six or seven years, there was no direct adjudication upon this question except that referred to in Yorke v. Grenaugh, of the Exeter carrier. In 1843 there was a direct adjudication upon the question now under consideration, in the supreme court of Michigan, in the case of Fitch v. Newberry, 1 Doug. 1 [40 Am. Dec. 33]. The circumstances of that case were very similar to those in the present case. There the goods were diverted from the course authorized by the owner, and came to the hands of the carrier without the consent of the owner, express or implied; the carrier, however, was wholly ignorant of that, and supposed they were rightfully delivered to him; and he claimed the right to detain them until paid for the carriage. The owner refused to pay the freight, and brought an action of replevin for the goods. The decision was against the carrier. The general principle

settled was, that if a common carrier obtain possession of goods wrongfully or without the consent of the owner, express or implied, and on demand refuse to deliver them to the owner, such owner may bring replevin for the goods, or trover for their value. The case appears to have been very fully considered, and the decision is supported by strong reasoning and a very elaborate examination of authorities. A very obvious distinction was supposed to exist between the cases of carriers and innkeepers, though the distinction did not affect the determination of the case.

This decision is supported by the case of Van Buskirk v. Purinton, 2 Hall, 561. There property was sold on a condition, which the buyer failed to comply with, and shipped the goods on board the defendants' vessel. On the defendants' refusal to deliver the goods to the owner, he brought trover and was allowed to recover the value, although the defendants insisted on their right of lien for the freight.

Thus the case stands upon direct and express authorities. How does it stand upon general principles? In the case of Saltus v. Everett, 20 Wend. 267, 275 [32 Am. Dec. 541], it is said: "The universal and fundamental principle of our law of personal property is, that no man can be divested of his property without his consent, and consequently that even the honest purchaser under a defective title can not hold against the true proprietor." There is no case to be found, or any reason or analogy anywhere suggested, in the books, which would go to show that the real owner was concluded by a bill of lading not given by himself, but by some third person, erroneously or fraudulently. If the owner loses his property, or is robbed of it, or it is sold or pledged without his consent, by one who has only a temporary right to its use by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be done upon it, the owner can follow and reclaim it in the possession of any person, however innocent.

Upon this settled and universal principle, that no man's property can be taken from him without his consent, express or implied, the books are full of cases, many of them hard and distressing cases, where honest and innocent persons have purchased goods of others apparently the owners, and often with strong evidence of ownership, but who yet were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. There are other hard and distressing cases of advances made