Page:Harvard Law Review Volume 5.djvu/363

NOTES. 347 tional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates." in the course of the opinion the court considers the provisions of the Massachusetts Constitution, that the witness shall not be " compelled to accuse, or furnish evidence against, himself," and of the New York Constitution, which is in the same language as that of the Fifth Amendment. The conclusion is reached that inasmuch as the general purpose ol these constitutional provisions is to prohibit compulsory self-accusatory evidence, "the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, how- eyer differently worded, should have, as far as possible, the same inter- pretation," and that " there is really, in spirit and principle, no distinction arising out of such difference of language." Trover for Conversion before Plaintiff's Title has accrued. — The case of Bristol and West of England Bank v. Midland Railway Co. [189 1], 2 Q_ B. 253, offers food for reflec- tion. The proposition which it would seem that the Court of Appeal intended to lay down, is that an action of trover or detinue will lie against a bailee for non-delivery of goods, even though they have been wrongfully disposed of to a third party before the plaintiffs title accrued. Considering the case first as an action of trover, the proposition is certainly startling that A, who has got title to goods, can demand them from, and on refusal sue for conversion, B, who has never had them in his possession since the plaintiff owned them. Opposed to such a contention is Lord Blackburn's dissenting opinion in Goodman v. Boy- cott, 2 B. & S. 1, and a statement in Clerk & Lindsell on Torts, p. 183, that " there cannot be a conversion by demand and refusal, un- less at the time of the demand the defendant had it in his power to return the property." The decision might be sustained on the authority of Franklin v. JVeate, 13 M. &. W. 481 (a case of judicial legislation founded on no principle), that a purchaser from a bailor may proceed in his own name agiinst a bailee. This seems to be the ground of Lord Cole- ridge's decision in the Queen's Bench, but Lord Justice Lindley prefers to rest the case on a different principle. Moreover, an examination of the case seems to indicate clearly that the conver- sion sued on is not the wrongful disposal of the goods while the bailor retained title, but a conversion arising from the refusal of the plaintiffs demand to produce chattels converted before he had any interest in them. Further, if the action were founded on the earlier act of conversion, the plaintiff would be liable to be met by all the defences which could be raised against his assignor, — a possibility certainly not contemplated by the court. The ground of the decision in the Court of Appeals — and it meets with the- approval of Sir F. Pollock — is the broad principle that " a man who wrongfully parts with goods is liable as if he had them still in his possession. Qui dolo desiit possidere fro possidente damnatur." Reducing this to its lowest terms would seem to bring it down to that shifty thing, estoppel; and what is the estoppel? The answer must be