Tilghman C. J.
after stating the facts, delivered his opinion as follows:
It appears from the evidence, that the wine, not having been delivered to General Stewart’s executors, during the life of Mr. Hill, was at the time of Mr. Hill’s death, the property of Le Mar, Hill and Bisset, whose agent he was. It has been suggested, that it was in fact delivered to Mrs. Stewart, one of the executory, because Mr. Hill kept it for her in his cellar at her particular request. But this suggestion not being supported by any evidence, and being incon[328]*328sistent with Mr. West’s testimony, is not to be regarded. " When the wine was delivered by Gideon H. Wells to Mrs. Stewart, it was delivered to her either as executrix of General Stewart, or on her own private account. Take it either way, I do not see how this action can be supported by Mr. Hill’s executors. If the delivery was to Mrs. Stewart as executrix of her husband, the action should have been brought against the executors. If it was delivered on her own account, a new contract arose, not between Mr. Hill and her, for he was dead, but between her and Le Mar & Co., whose property the wine was. If Mr. Hill had accounted for the wine with Le Mar & Co., and thus made it his own, perhaps the action might have been supported in the name of his executors, because- the money when recovered, would have been assets in their hands. But there is not the least evidence of any act, by which the property could have vested in Mr. Hill. Nor do I see how it could be vested in those persons who were his executors, for they never accounted for it to Le Mar & Co.; and even if they had undertaken to deliver it without orders, by which they rendered themselves responsible to Le Mar Co., this responsibility would have been incurred not as executors of Mr. Hill, but in their own private capacity, and in that case, the action, if maintainable at all by them, (as to which I give no opinion) must have been brought in their own names, and not as executors. But it appears to me, that the most proper way of bringing Suit, would have been in the names of Le Mar & Co. whose property the wine undoubtedly was at the time of its delivery to the defendant. The plaintiff’s counsel contended that the action was maintainable, on the ground of a sale by an agent, in which case the action will be either in the name of the principal or the agent. But supposing the sale to have been made by the plaintiffs as agents'of the Madeira house, (of which there is no proof,) still the action should have been brought in their own names, and not as executors, for their testator had nothing to do with their agency, nor could his estate, be in any manner involved in their transactions. Mr. Hill’s agency ended with his life. At the time of his death, the wine remained in his cellar, the property of his principals; and if after his death his executors became the agents of the same principals, it was an affair [329]*329in which his estate was unconcerned. Upon the whole, I am clearly of opinion, that the plaintiff was not entitled to verdict, and therefore there should be a new trial.
Yeates J.
It cannot be denied, that unless Mr. Hill ’could have supported this action in his life time against Mrs. Stewart in her own right, it cannot now he maintained at the suit of his personal representative. I see no ground of action on the part of Hill. He was consignee and agent ®f the house at Madeira, who shipped the wine on account, and at the risk of Walter Stezvart, but it did not arrive here until after his death. I find no testimony from which the jury could infer a sub-contract, as it is called, between Mr. Hill and Mrs. Stewart. The former stored it, as we may presume, from some arrangement made between him and the executors of Stewart, and kept it in his possession until the time of his death. The two pipes of wine were afterwards delivered to the defendant by Gideon H. Wells, as the general agent of the executors of Mr. Hill, without any particular authority for that purpose, in consequence of some representations made by her that the wine was her own property, founded on some affidavit, the particulars of which we are wholly uninformed of. It is not pretended, that there was any sale from Hill to the defendant in her own right, and consequently there is no ground of suit as between the present parties. But if the original contract respecting the two pipes of wine, was rescinded, either by mutual consent, or by Stewart’s executors finding themselves unable to discharge the amount thereof out of their testator’s assets, and Mrs. Stewart afterwards obtained the possession thereof, I have no hesitation in declaring my opinion, that she thereby has made herself responsible to the surviving partners of the Madeira house.
I am of opinion, that the present verdict .cannot be supported on principles of law, and therefore should be set aside.
Brackenridge J.
I am under the necessity of dissenting, totis viribus contra, as the reporters sometimes say. The leading facts of this case are these. A Madeira house had shipped wine for Walter Stewart of Philadelphia, the [330]*330wine not paid for. They had signed a bill of lading, and " addressed a letter of advice to Stewart. Before the arrival of the wine, Stewart had deceased, and his estate was said to be insolvent, as it has since appeared to be. An acting executorof Stewart, (West) declined paying duties or taking the wine. He desired Mr. Hill, not that he was interested in the house, but, as was explained, had a concern for the interest of the house, had been occasionally an agent, or for reasons -was supposed to be a friend, he desired Hill to take the wine and keep it till paid for. West was not willing to give his note for the wine. Hill took it into his possession. West entered it and paid duties, but charged Hill, who paid afterwards, so that Hill became possessed of á special property in this wine, and was to hold it for the Madeira house until paid for. After the death" of Hill, his executor became possessed of this wine, having the same special property in it which Hill had. The defendant, an executrix of Stewart, under some pretence got possession of this wine, without paying for it. The executors of Hill, considering her as having got possession wrongfully, bring an action. They might have brought trover, but they have waived the tort, and have laid an assumpsit. The defence set up by the defendant on the trial was, that as executrix of the estate of Stewart, she had a right to hold it, cthe bill of lading and letter of advice having vested the property in Stewart; and for this was read, 1 Lord Ray. 271. It was laid down in my charge to the jury, that a bill of lading and letter of advice did not vest the interest in the consignee absolutely; for in case of the insolvency of a consignee, it might be stopped in transitu, and for this I referred to 7 Mass. Rep. 453., as a strong case, where the extent of the right to stop is well explained by Chief Justice Parsons. But there was no stoppage in transitu,
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Tilghman C. J.
after stating the facts, delivered his opinion as follows:
It appears from the evidence, that the wine, not having been delivered to General Stewart’s executors, during the life of Mr. Hill, was at the time of Mr. Hill’s death, the property of Le Mar, Hill and Bisset, whose agent he was. It has been suggested, that it was in fact delivered to Mrs. Stewart, one of the executory, because Mr. Hill kept it for her in his cellar at her particular request. But this suggestion not being supported by any evidence, and being incon[328]*328sistent with Mr. West’s testimony, is not to be regarded. " When the wine was delivered by Gideon H. Wells to Mrs. Stewart, it was delivered to her either as executrix of General Stewart, or on her own private account. Take it either way, I do not see how this action can be supported by Mr. Hill’s executors. If the delivery was to Mrs. Stewart as executrix of her husband, the action should have been brought against the executors. If it was delivered on her own account, a new contract arose, not between Mr. Hill and her, for he was dead, but between her and Le Mar & Co., whose property the wine was. If Mr. Hill had accounted for the wine with Le Mar & Co., and thus made it his own, perhaps the action might have been supported in the name of his executors, because- the money when recovered, would have been assets in their hands. But there is not the least evidence of any act, by which the property could have vested in Mr. Hill. Nor do I see how it could be vested in those persons who were his executors, for they never accounted for it to Le Mar & Co.; and even if they had undertaken to deliver it without orders, by which they rendered themselves responsible to Le Mar Co., this responsibility would have been incurred not as executors of Mr. Hill, but in their own private capacity, and in that case, the action, if maintainable at all by them, (as to which I give no opinion) must have been brought in their own names, and not as executors. But it appears to me, that the most proper way of bringing Suit, would have been in the names of Le Mar & Co. whose property the wine undoubtedly was at the time of its delivery to the defendant. The plaintiff’s counsel contended that the action was maintainable, on the ground of a sale by an agent, in which case the action will be either in the name of the principal or the agent. But supposing the sale to have been made by the plaintiffs as agents'of the Madeira house, (of which there is no proof,) still the action should have been brought in their own names, and not as executors, for their testator had nothing to do with their agency, nor could his estate, be in any manner involved in their transactions. Mr. Hill’s agency ended with his life. At the time of his death, the wine remained in his cellar, the property of his principals; and if after his death his executors became the agents of the same principals, it was an affair [329]*329in which his estate was unconcerned. Upon the whole, I am clearly of opinion, that the plaintiff was not entitled to verdict, and therefore there should be a new trial.
Yeates J.
It cannot be denied, that unless Mr. Hill ’could have supported this action in his life time against Mrs. Stewart in her own right, it cannot now he maintained at the suit of his personal representative. I see no ground of action on the part of Hill. He was consignee and agent ®f the house at Madeira, who shipped the wine on account, and at the risk of Walter Stezvart, but it did not arrive here until after his death. I find no testimony from which the jury could infer a sub-contract, as it is called, between Mr. Hill and Mrs. Stewart. The former stored it, as we may presume, from some arrangement made between him and the executors of Stewart, and kept it in his possession until the time of his death. The two pipes of wine were afterwards delivered to the defendant by Gideon H. Wells, as the general agent of the executors of Mr. Hill, without any particular authority for that purpose, in consequence of some representations made by her that the wine was her own property, founded on some affidavit, the particulars of which we are wholly uninformed of. It is not pretended, that there was any sale from Hill to the defendant in her own right, and consequently there is no ground of suit as between the present parties. But if the original contract respecting the two pipes of wine, was rescinded, either by mutual consent, or by Stewart’s executors finding themselves unable to discharge the amount thereof out of their testator’s assets, and Mrs. Stewart afterwards obtained the possession thereof, I have no hesitation in declaring my opinion, that she thereby has made herself responsible to the surviving partners of the Madeira house.
I am of opinion, that the present verdict .cannot be supported on principles of law, and therefore should be set aside.
Brackenridge J.
I am under the necessity of dissenting, totis viribus contra, as the reporters sometimes say. The leading facts of this case are these. A Madeira house had shipped wine for Walter Stewart of Philadelphia, the [330]*330wine not paid for. They had signed a bill of lading, and " addressed a letter of advice to Stewart. Before the arrival of the wine, Stewart had deceased, and his estate was said to be insolvent, as it has since appeared to be. An acting executorof Stewart, (West) declined paying duties or taking the wine. He desired Mr. Hill, not that he was interested in the house, but, as was explained, had a concern for the interest of the house, had been occasionally an agent, or for reasons -was supposed to be a friend, he desired Hill to take the wine and keep it till paid for. West was not willing to give his note for the wine. Hill took it into his possession. West entered it and paid duties, but charged Hill, who paid afterwards, so that Hill became possessed of á special property in this wine, and was to hold it for the Madeira house until paid for. After the death" of Hill, his executor became possessed of this wine, having the same special property in it which Hill had. The defendant, an executrix of Stewart, under some pretence got possession of this wine, without paying for it. The executors of Hill, considering her as having got possession wrongfully, bring an action. They might have brought trover, but they have waived the tort, and have laid an assumpsit. The defence set up by the defendant on the trial was, that as executrix of the estate of Stewart, she had a right to hold it, cthe bill of lading and letter of advice having vested the property in Stewart; and for this was read, 1 Lord Ray. 271. It was laid down in my charge to the jury, that a bill of lading and letter of advice did not vest the interest in the consignee absolutely; for in case of the insolvency of a consignee, it might be stopped in transitu, and for this I referred to 7 Mass. Rep. 453., as a strong case, where the extent of the right to stop is well explained by Chief Justice Parsons. But there was no stoppage in transitu, for it became unnecessary, the executors declining to accept; the acting executor of Stewart, Hill, or his representative, was to hold it until paid for. The representatives suffered-it to slip out of their possession, and they are themselves answerable to the Madeira house. It was not an act of agency by which they lost possession, it was contrary to their trust. They cannot elect to consider it an act of agency, to let the property go without being paid for, and throw the loss, if there should be loss, upon the Madeira [331]*331house. They have therefore a right to bring their action against the person divesting them of possession without pajdng for the wine, in the manner that has- taken place. The Madeira house might elect to take the defendant and bring, suit; but they are not bound to do it. They may sue the executors of Hill, and charge them with a conversion of the property, or recover the value as money had and received to their use. The Madeira house will most probably not elect to take the defendant, because they will be embarrassed with her claim as executrix of the estate of Stewart, on the score of it being made the property of Stewart, by the bill of lading and the letter of advice. She will plead no assets, the estate being insolvent, and this being alleged to have gone in the mean time, to satisfy other creditors. The Madeira house, it is true, may take their chance of proving, as was shewn to be the case here, that the defendant did not obtain the property as executrix, but in her individual capacity, and therefore must be answerable for it without a reference to the estate. But why shall the Madeira house be turned round to this, when the justice of the case is already reached, by the executors of Hill recovering for the use of their house, as in fact cannot but be supposed to be the case? Costs must be paid before a new action can be brought. The statute of limitations may intervene, and the demand be wholly gone. I did not expect, on a motion for a nexo trial, to hear a motion in arrest of judgment argued. For the defence on the trial is deserted, that this wine by the bill of lading became the property of the estate of Walter Stewart, and that the defendant, as executrix, had a right to it. The question now made, is whether the principal or agent has a right to bring the action. But it.involves no question of agency, when the agent parts with property contrary to his duty, and is answerable for it. He is liable to the principal, and the supposed agent may look after the wrongdoer. I say supposed,, because the agent by negligence makes the act his own, and he is quoad hoc no agent. The taking was a matter between the executors of Hill and the defendant, and the Madeira house are not bound to take any notice of it. The executors of Hill cannot elect to say that the Madeira house shall take notice of it, but may sue for themselves as they [332]*332have done in this case. If they recover, they may pay over ^ money s0 recovered, and save themselves from a suit. I am therefore of opinion against a new trial, that the action was well brought, and that judgment be upon the verdict.
New trial awarded.