N. Y. Superior Court.-John H. Keyser agt. William H. Harbeck, &c.

The plaintiff without conferring with Ward & Price but believing the representations, commenced delivering the goods on board the Wm. H. Harbeck. As he delivered them, he took from the master receipts stating that the plaintiff had put the goods on board, to be carried to California.

When portions had been delivered, the plaintiff asked Dietz for money, who said his principals would not pay without the shipping receipts to show that all was right. Dietz was thereupon entrusted with shipping receipts, and brought to plaintiff the full amount covered by such receipts. This occurred two or three times: when all had been put on board, being some 200 cases, and amounting at the contract price to over $8000, Dietz was entrusted with all the remaining receipts, in order to obtain payment from his alleged principals.

He did not return with the money, but from day to day excused the nonpayment, until the plaintiff becoming alarmed sought Ward & Price, and then ascertained that Dietz's representations were untrue. That they had advanced to him on the representation and belief that the goods were his, and on the security of the shipping receipts. These they had returned to the master, and had obtained from him a bill of lading. The bill of lading stated that Louis Dietz had shipped the goods and made them deliverable to the order of Ward & Price, at San Francisco, and was dated May 6, 1850.

About the last of May, 1850, the plaintiff formally demanded of Ward & Price, the manual possession of the goods; the latter of fered to assign to plaintiff the bill of lading on being paid $4,030, the amount of their advances. The plaintiff offered to pay this sum if Ward & Price would give him the manual possession of the goods. They declining to do more than to assign and deliver the bill of lading to the plaintiff, he finally tendered the amount $4,030, and demanded an actual restoration of the goods.

The plaintiff also demanded the goods of the master, and of the defendants, Harbecks, the owners of the vessel, and offered to pay the expenses of taking them out of the vessel. The Harbecks refused to give up the goods, unless the bill of lading was returned, and they were paid the expenses of discharging and indemnified against all liability to other shippers that might arise from delaying the voyage during the time necessary to unload. The master insisted that he was entitled to freight, as well as to a return of the bill of lading. It was proved to be the uniform custom for the master to issue a bill of lading to the person who presented and surrendered the shipping receipts.

The case states that "the counsel for the respective parties summed "up the case to the jury, upon the question whether Dietz had obtain"ed the property in dispute by false pretences, with intent to defraud "the plaintiff.

"The chief justice recapitulated the evidence, and reserved all the "questions of law arising between the plaintiff and the respective de"fendants, for future consideration. He stated, in writing, the follow

N. Y. Superior Court.-John H. Keyser agt. William H. Harbeck, &c.

"ing question: "Did Dietz obtain the property in question by false pretences?" and directed the jury to make a written finding thereon, "he explained to them the provisions of the statute in relation to ob"taining property by false pretences, and what was necessary in order "to constitute the offence, and further instructed them that in order to "bring the case within the statute, Keyser was bound to have exerci"sed reasonable care and prudence, and that they must consider wheth"er he had acted with ordinary diligence and precaution.

"The jury returned into court, and found in the affirmative in an"swer to the particular question submitted to them, and they also "found a general verdict for the plaintiff, and assessed the value of the "property at five thousand and seventy-nine dollars and thirty-one "cents, (5079 31,) and thereupon the chief justice ordered that the "questions of law reserved, be heard in the first instance at a general "term of the court. The verdict having been taken subject to the "opinion of the court upon this case, with liberty to either party to "turn the same into a bill of exceptions, and with liberty to the court "to order a non-suit or judgment for the defendants, or any of them."

The cause was fully and elaborately argued, at GENERAL TERM, by E. Sandford, for the Plaintiff. J. W. Gerard, for DEFTS. HARBECKS, and J. Larocque, for WARD & PRICE.

By the Court-BOSWORTH J.-The question argued at the General Term by the counsel of all the parties, as being the principal one arising in the cause is this: Can a party who has been fraudulently induced to sell and deliver goods by means of false pretences, indictable under the Revised Statutes, reclaim them from one who has bona fide bought and obtained possession of them from the fraudulent vendee?

The plaintiff's counsel insists, that when a party is deprived of his goods by acts amounting to a felony at common law, his title cannot be divested by a sale to a bona fide purchaser. This is not denied. But he also insists, that the Revised Statutes have made the obtaining of goods by false pretences a felony, and that it follows that the general rules of law applicable to the rights of an owner of property feloniously taken, are applicable with equal force to property taken from him by false pretences, indictable by the Revised Statutes.-14 Wend., 31, 35; 3 Barb., S. C. R., 20, 29, 30; 2d Ad. & Ellis, 495-98 -99.

The defendants concede that a party who has been deprived of his property by acts amounting to a felony at common law, may reclaim them from one who has bona fide bought them from the felon. But they insist, that when the owner has delivered them to a third person, intending, at the time of the delivery, to part with his title to such person, though he may have been induced to deliver them with such intent by fraud or false pretences, he cannot reclaim them from one who may have bona fide bought them from the person to whom they

N. Y. Superior Court.-John H. Keyser agt, William H. Harbeck, &c.

were so delivered. That such was and is the well settled rule, unless it has been altered by 2 R. S., 677, §53, and id. 702, § 30.

That $30, (p. 702,) creates a statutory definition of the word felony, for the mere purpose of attaching to it a precise and definite meaning whenever found in any Statute of the State, and not for the purpose of affecting the rights of property of third persons, growing out of any bona fide dealings between them and their vendors, in relation to property obtained by the latter, by acts which were not a felony at common law, but which might be such under this statutory definition.

That under a just construction of the two sections cited, the obtaining of goods by false pretences is not a felony within the definition of the word given by the statute; that the obtaining of goods by false pretences is not declared by 2 R. S., 677, § 53, to be a felony, nor is the word felony to be found in that section, nor in the article containing that section. That although the offender may be punished by imprisonment in a state prison not exceeding three years, yet he may be imprisoned in a county jail only, and for less than one year, and may be punished merely by the imposition of a fine.

The section defining the word "felony," reads thus:

"The term 'felony," when used in this act, or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a state prison."-2 R. S., 702, § 30.

The revisors' note to the section states, that "the term felony originally imported an offence for which the offender forfeited his fief, his lands and tenements, goods and chattels.-4th Black., 94. Such forfeitures have long been abolished, and the term has really no signification in our law. It is frequently used in statutes, and it is therefore desirable to give it a definite meaning. The definition proposed is conformable to the common understanding."-3d R. S., 2d ed., p. 836-7.

Does the term, as defined in § 30, mean an offence for which the offender, on conviction, must necessarily be punished by imprisonment in a state prison, or is it enough that he is liable to be so punished, although the punishment may, in fact, be only a fine?

If sentenced merely to pay a fine, is he rendered incompetent as a witness, under § 23 of 2 R. S., 701. If sentenced to imprisonment in a state prison, does that section render him incompetent? Whatever may be the sentence, it is pronounced "upon a conviction of having obtained property by false pretences." The offence, in the case supposed, is necessarily a felony or no felony, irrespective of the degree or character of the punishment that may be actually adjudged, or else it depends upon the sentence that may be pronounced, and not upon the nature of the offence alone, whether it is to be the one or the other, with the resulting consequences? If it depends upon the sentence, then one obtaining goods by false pretences must be convicted and sentenced before it can be known whether he obtained them by felony within the statutory definition of the word.

N. Y. Superior Court.-John H. Keyser agt. William H. Harbeck, &c. If sentenced to imprisonment in a state prison, is the person who was defrauded of his property by the false pretences, a creditor of the convict under 2 R. S., 700, $14.

I think the definition of the term "felony" found in the statute, was enacted for the mere purpose of giving it a definite meaning when found in statutory law, and without any design of affecting by it the rights or liabilities of third persons, resulting from ordinary and bona fide business transactions between them, and any one who may have obtained the property to which the transactions relate, by acts which were not a felony at common law, but which, by the Revised Statutes, may possibly be an offence, coming within their definition of a felony.

Petit larceny was a felony at common law, under the statutory definition it is not; being punishable by imprisonment in a county jail not exceeding six months, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment. Accordingly it was held in Carpenter v. Nixon, that a person who had been convicted of petit larceny was a competent witness; that, though still a felony at common law, it was not so by statute, and that the statute declaring a person convicted of a felony incompetent to be a witness, excluded only such as were guilty of the offence as defined by the statute; that this word in the disqualifying section, (2 R. S., 701, § 23,) was used as defined by § 30, p. 702; and therefore the offender was competent, though convicted of an offence which was a felony at common law. 5 Hill, 260, Carpenter v. Nixon; and see 3 Hill, 395, Ward v. The People.

Conceiving that the question is not affected by the Revised Statutes, it remains to be considered how it should be determined on principle and authority.

There is no question that a vendor who has been induced by false pretences, within the meaning of those terms as used in the Revised Statutes, or by fraud not indictable, may reclaim the property from the fraudulent vendee.

But when a question of right or title arises between the vendor, and a bona fide purchaser from the fraudulent vendee, an entirely different case is presented, and other considerations are to be taken into account. Hence it has been held that when the owner of property is induced to sell it, though by fraud, and actually delivers possession of it, intending at the time to then part with his title to it, a bona fide purchaser from the fraudulent vendee will hold it against the defrauded vendor. In such a case one of the persons must suffer, the original vendor or the last purchaser. Either the party' who has actually consented to sell and deliver his property, and has delivered it with intent to part with his title, or the one who has bought it in good faith from the person to whom such sale and delivery were made.

Mowry v. Walsh, 8 Cowen, 238, is in point, and if the settled law of this State is in conformity with the rule it adjudged, it is decisive of this question.

N. Y. Superior Court-John H. Keyser agt. William H. Harbeck, &c.

In deciding the latter case, the court seem to have been much influenced by the decision in Parker v. Patrick, 5 T. R., 175. In Parker v. Patrick, a pawnee of goods, which had been obtained from the defendant, the true owner, by fraud and false pretences, recovered their value, notwithstanding the defendant had procured the offender, who pawned them to the plaintiff, to be indicted and convicted.

The plaintiff's counsel insists that Parker v. Patrick is discredited by the subsequent decision of Peer v. Humphrey, (2 Ad. & Ellis, 495,) and that the latter establishes the doctrine that the right of an owner to reclaim his property from third persons is the same, whether it was taken from him by acts amounting to felony at common law, or by false pretences. The only thing said in Peer v. Humphrey, by way of questioning Parker v. Patrick, is this remark of LORD DENMAN: "Another difficulty arises from the case of Parker v. Patrick, 5 T. R., 175. There, indeed, the court distinguished between fraud and felony; but in the argument for the present defendant it is denied that such distinction can be taken; if so, the decision in that case was incorrect. And if the question of goods fraudulently obtained were before us, I cannot help thinking that the case of Parker v. Patrick would not bear examination. The Earl of Bristol v. Wilsmore, 1 B. & C., 514, seems to me quite inconsistent with it.

It is difficult to see what inconsistency there is between Patrick vs. Parker and the Earl of Bristol vs. Milsmore. The plaintiff, in the latter case, was not a purchaser from, or pawnee, in good faith, of the offender. But he was a Sheriff, and as such had seized the property on an execution against the wrong-doer. The latter acquired no title as against the defendant, the true owner, and the sheriff by merely levying on his interest, acquired no equity superior to the legal title of the true owner, but, on the contrary, stood solely upon the title of the wrong-doer. Again, it is to be observed that Parker vs. Patrick was decided, while the Act of 21 Hen. 8, c. 11, was in force, and was put on the ground that that statute gave an absolute right of restitution to an owner who had been deprived of his property by felony, on prosecuting the offender to conviction, but gave no such right to one who had been deprived of it by false pretences, which offence was not a felony. Before Peer vs. Humphrey arose, the 21st of Hen. 8, c. 11, had been repealed by statute of 7 and 8 G. 4, c. 27, § 1. The statute of 7 and 8 G. 4, c. 29, § 57, substituted other enactments as to restitution, and gave the right to one whose goods had been obtained by fraud, on prosecuting the offender to conviction. The case of Peer vs. Humphrey, was one of larceny, and therefore was clearly distinguishable from Parker vs. Patrick, and if what was unnecessarily said of the latter, was said without adverting to the fact, that the statutes in force at the time the two cases were decided, were essentially different, there is nothing in the remark to shake the decision in Parker vs. Patrick.

In White vs. Garden et al, 5 Law and Equ. R. 379, the case of Parker vs. Patrick, was approved by the Judges of the Court of Common Pleas, who thought it sustainable on the grouud that the