Kelly v. Patchell , 5 W. Va. 585 ( 1872 )

Berkshire P.

This was an action of trover, brought by a bailor against his bailee for hire, in the circuit court of Ka-nawha, for the conversion of the property so bailed. The question in the case is whether it was competent for the defendant, as he proposed to do, to dispute the plaintiff’s right or title to the propertj in controversy, bir allowing that, at the time of the bailment, it in fact belonged to a third partju The general doctrine is well established that, in ordinary cases, the bailee cannot dispute his bailor’s title any more than a tenant can his landlord’s. But the general rule has numerous exceptions, in which he will be permitted to do so; as in a case where it can bo shown that the latter fraudulently obtained possession of the goods, or that they have been recovered from the former by suit or paramount title; or he has been notified'by the true owner, before the suit was instituted bv the bailor, not to deliver them to him; and like instances. Story on Bailment, § 97 to 110; Bates vs. Stanton, 1 Duers R. 79, and authorities there referred to. Nothing appears in this cam, however, that would bring it within any of the exceptions. But it falls directly within the general rule and must be governed by it. The court did not err therefore in rejecting the evidence offered by the defendant, set out in his bill of exceptions. And I do not think the court er-'ed in refusing the defendant a new trial for the reasons stated in his affidavit, upon which his motion for a new trial was based. The judgment will therefore have to be affirmed with costs and damages.

The other judges concurred.

JUDGMENT AFFIRMED.