Biddle against Bond
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 1865 |
| Date | 25 February 1865 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 1179
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 34 L. J. Q. B. 137; 12 L. T. 178; 11 Jur. N. S. 425; 13 W. R. 561. Applied, Leese v. Martin, 1873, L. R. 17 Eq. 233. Distinguished, Kingsman v. Kingsman, 1880, 6 Q. B. D. 129; In re Sadler, 1881, 19 Ch. D. 86. Approved, Rogers v. Lambert, [1891] 1 Q. B. 318. Discussed, Henderson. V. Williams, [1895] 1. Q. B. 521. Approved, Ross v. Edwards, 1895, 73 L. T. 100.
erm. [225] hilary vacation, 28 vict. L J .. . biddle against bond. Saturday, February 25th, 1865. - Action by bailor. Estoppel. Jus tertii. - 1. The estoppel against a bailee from disputing the title of his bailor, and setting up a jus tertii, ceases when the bailment on which the estoppel is founded is determined by what is equivalent to an eviction by title paramount : - it is not enough that the bailee has become aware of the title of a third person, or that an adverse claim is made upon him, so that he may be entitled to an interpleader. - 2. Goods of R. were seized by the plaintiff under a distress for rent of a house alleged to have been demised by the plaintiff to R. and were delivered by the plaintiff to the defendant to sell as his auctioneer. When the sale was about to begin R. served a notice on the defendant that the distress was void, and requiring him not to sell, or, if he sold-, to retain the proceeds for him. The defendant sold the goods, but refused to pay over the proceeds to the plaintiff, and defended an action by the plaintiff, relying on the right and by the authority of E. The distress was void and tortious, as the relation between the plaintiff and R. was not that of landlord and tenant; but although the plaintiff was a wrong doer, there was no fraud an his part, and he thought he had a right to distrain. Held, that the defendant might set up the jus tertii of R. as an answer to an action. [S. C. 34 L. J. Q. B. 137 ; 12 L. T. 178 ; 11 Jur. N. S. 425 ; 13 W. R. 561. Applied, Ltf&e v, Martin, 1873, L. R. 17 Eq. 233. Distinguished, Kmgsman v. Klngsmivn., 1680, 6 Q. B. D. 129; In re Sadler, 1881, 19 Ch. D. 86. Approved, Rogers v. (a) Pawson v. Watson, Cowp. 785, 790. 1180 BIDDLE V. BOND 6 B. ft S. 226. Latnlert, [1891] I Q. B. 318. Discussed, Henderson v. Williams, [1895] 1 Q. B. 521. Approved, Ross v. Edwards, 1895, 73 L. T. 100.] The declaration stated that in consideration that the plaintiff would employ the defendant as his agent to sell and dispose of certain goods for the plaintiff, for reward to the defendant, the defendant promised the plaintiff to sell and dispose of the goods for the plaintiff, and on request to render to the plaintiff a just and true account of the rale of tha goods and of the monies arising from such sale, and to pay over such monies to the plaintiff; and the plaintiff averred that he employed the defendant and the defendant received and had the [226] goods for the purpose and on the terms aforesaid, and all conditions were fulfilled and all things happened and all times elapsed necesiary to entitle the plaintiff to maintain this action, yet the defendant did not render to the plaintiff a just and true or any other account of the sale of the goods or of the moneys arising from such sale, nor did he pay over such moneys to the plaintiff. There were also counts for money received and on an account stated. Pfeas. To the first count. First. That the defendant did not promisa Second. That the plaintiff did not employ the defendant as his agent, nor did the defendant receive the goods for the purpose and on the terms alleged. Third. To the residue of the declaration, never indebted. Issue. Qnf the trial, before Willes J., at the Surrey Summer Assizes, 1864, a verdict was directed to be entered for the plaintiff for 441. 12s. 6d., leave being reserved to move to enter the verdict for the defendant, or a nonsuit, the Court to have power to draw inferences of fact and make amendments. It appeared, that goods which belonged to one Bobbins were seized by the plaintiff under a distress for rent of a house alleged to haws been demised by him to Bobbins; these goods had been removed by the plaintiff, and delivered by him to the defendant to sell as his (the plaintiff's) auctioneer; and the defendant proceeded to sell them in the ordinary way. When the sale was about to begin, Bobbins served a notiea on the defendant that the distress was void, as the relation of landlord and tenant did not exist between him and the plaintiff, and there waa no rent in arrear; and by the notice Bobbins required the defendant not to [237] sell the goods, or, if he had sold them, to retain the proceeds for him, Bobbins. Tbe defendant proceeded to sell the goods; but the Court thought that the inference from the evidence was that he did this only because the notice was served so late that he had not time to make any inquiries bafore the sale came on. He received the proceeds of the sale, but refused to pay them over to the plaintiff. He did not pay the proceeds to Bobbins, but from the evidence of Bobbins, who was called as a witness at the trial, the Court drew the inference of fact that the defendant withheld the proceeds from the plaintiff and defended this action, relying on the right and by the authority of Bobbins, and not hostilely to him. It appeared that the relation between the plaintiff and Bobbins was not that; of landlord and tenant, but of vendor and vendee, and consequently that the distress was altogether void and tortious, In last Michaelmas Term, Parry Serjt., in pursuance of leave reserved, obtained a rule nisi to enter the verdict for the defendant, which waa argued in Hilary Terra, 1865, Jan. 23, before Cockburn C.J., Blackburn and Mellor JJ. Thrnpp shewed cause.-An agent can only set up the jus tertii in an action by his. principal against him where the principal's possession of tha goods has arisen out of fraud In Smith Mercantile Law, p. 115, 7th ed,, it is said, " An agent will not be aJlowed to dispute the title of his principal to the subject-matter of the agency." But it is added in note (), "However, if the property in the agent's hands have been fraudulently obtained by the principal from third persons [228J this rule does not apply," citing Hardman v. Willcock, note (a) to White v. Bartleti (9 Bing. 382). So in Chessman v. Exall (6 Exch. 341) it was held that the defendant, with whom the plaintiff had deposited goods in order to defeat an execution creditor, was entitled to set up tb& right of the execution creditor. The reason of this is the same as that which establishes that where a sale of goods has been obtained by fraud of the purchaser the contract is voidable only at the election of the vendor; Load v. Green (15 M. & Wi 216). [BFackburn J. referred to White v. Garden (10 C. B. 919.] In an action for use and occupation, a tenant cannot set up the claim of a mortgagee; Litton r. Sunn (17 Q. B. 294); and in Eickman v. Machin (4 H. & N. 716) it was held that a notice by the mortgagees to the tenant of the mortgaged premises to pay B.ftB.m BIDDLE V. BOND 1181 rent to them was no answer to an action for the rent by the landlord against the tenant. [Mellor J. The cases of mortgagor and mortgagee are hardly analogous to this.] Another exception to the rule, that an agent cannot set up the jus...
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...over others over such goods and chattels; and the duty of bailees to protect the rights of the owners. The case of Biddle v. Bond (1865) 122 E.R 1179, which is discussed in these extracts has been relied upon by the defendant as being the authority on this point. 34. In Biddle v. Bond (supr......
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