The opinion of the court was delivered,
by Sharswood, J.The main contest in the court below was upon questions of fact. The original owner of the raft and his alleged vendee, were both examined as witnesses, the parties to the suit being purchasers from them respectively. Their testimony was *247conflicting upon the most important questions in issue, — the fact of a sale and delivery — the retention of possession by the vendor if there was a sale, and the explanation of the marks on the logs. It is not the province of a court of error to review the verdict. The responsibility of that rests with the court before which the trial took place, and most wisely rests there: for they heard all the testimony from the lips of the witnesses, while all that is presented here are notes of the evidence, necessarily imperfect. It is our duty to dismiss from our minds all considerations arising upon the weight of the evidence, and confine ourselves to the errors of law alleged to have been committed, and which form the subject of the several assignments. These it is proposed to take up and examine, seriatim,, in their order.
The first error assigned is that the learned judge below instructed the jury that if “ this timber, formerly belonged to Griffith, and he sold it to McMasters, but an immediate contract was made to run it to market, and the raft was left in possession of Griffith, and lay on the landing hired by him until he started to run it to market, and he sold it on the way to the defendants, who bought it in good faith, without notice of the sale to McMasters, they will hold it.” That on the facts assumed in this instruction the law is correctly stated can hardly admit of a doubt. It is the doctrine of Shaw v. Levy, 17 S. & R. 99, — which remains unshaken in this state, — that if a vendee allow a vendor to remain in possession or after a formal delivery immediately restore the possession to him, and he afterwards sell and deliver the goods to a boná fide purchaser for value, without notice of the prior sale, such purchaser is entitled to the goods against the first vendee and all claiming under him. It would seem, however, to be a mistake to suppose that this rule depends either upon the statute of 13 Elizabeth c. v., or the statute 27 Elizabeth c. iv. The former of these statutes declared void all grants, as well of lands and tenements as of goods and chattels, made to delay, hinder or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries and reliefs as against the parties entitled to the same. It is evident that subsequent purchasers are not within its purview. The statute 27 Elizabeth c. iv., for the protection of purchasers, is expressly confined to “ all and every conveyance, grant, charge, lease, estate, encumbrance and limitation of use or. uses of, in, or out of any lands, tenements or other hereditaments whatsoever.” Roberts’ Dig., pp. 295, 298. These statutes have been more than once declared by very high authority to be merely declaratory. “ The principles and rules of the common law as now universally known and understood,” said Lord Mansfield, “ are so strong against fraud in every shape, that the common law would have attained every end proposed by the statutes 13 Elizabeth c. v., and 27 Elizabeth c. iv.” *248Cadogan v. Kennett, Cowp. 434; Marshall, C. J., in Hamilton v. Russel, 1 Cranch 316; Story, J., in Meeker v. Wilson, 1 Gall. 423; 2 Kent Com. 515. The principle upon which Shaw v. Levy rests is this, that the vendee by suffering the vendor to remain in possession, as to personal property the ordinary indicium of ownership, thereby enabled him to commit a fraud upon innocent third persons, and in a contest between them he must bear the loss who has been the cause of it. “ I do not consider,” said Mr. Justice Rogers, “that this.principle depends upon a secret trust between the original parties, but on public policy and the sound maxim of morality and law, that where one of two innocent persons must suffer, he who is the cause of the loss must bear it. Wherever there is a sale of property, and no actual possession delivered, it remains at the risk of the purchaser; as between him and the vendor the property is his, but when it passes into the hands of a bond fide purchaser without notice, it would be against sound policy to permit a recovery. The maxim caveat emptor does not apply.” The same view has been advanced by the Supreme Court of Connecticut. The rule of law that the retention of possession of personal property is conclusive evidence of a colorable sale is a rule of policy required for the prevention of fraud, and is to be inflexibly maintained. Therefore where a vendor of a horse within a week after the sale hired him of the vendee and was using him to all appearance as his own in the same manner as before the sale, it was held that it was a restoration of the possession : Webster v. Peck, 31 Conn. 495. Wherever the owner of goods stands by, and without objection allows another to treat them as his own, and a third person is thereby led to purchase them in good faith, he cannot recover from the purchaser on the familiar principle of estoppel; and the same doctrine applies, although the party who allows another to assume the credit of ownership is not actually present when the act is done by which the third party is deceived: Gregg v. Wells, 10 Ad. & Ell. 90; Thompson v. Blanchard, 4 Comst. 303. In the every day transactions of life men are under the necessity of intrusting the possession of goods to servants and bailees for various purposes. The owner does not in such cases lose his property by a breach of trust in the mandatory, where there is no sale in market overt: Lecky v. McDermott, 8 S. &. R. 500; King v. Richard, 6 Whart. 422; Rapp v. Palmer, 3 Watts 178; McMahon v. Sloan, 3 Jones 231. Allowing a person therefore to have actual possession oí chattels, unless there is some other fact connected with it, is not an act which holds him out to the public as owner or as authorized to sell it as his own. The doctrine of caveat emptor, as to any title the purchaser may acquire applies: Brown v. Wilmerding, 5 Duer 225. But when the possession remains in the original owner, or after a formal delivery it is restored without *249any notorious break in the continuity of it, under a secret understanding or agreement with him as servant, agent or bailee, this is an element which makes a very important difference in the case. That inquiry, which the party dealing with the possessor is bound to make, and which the law presumes him to make, leads him back to the original title, and thus his diligence will only avail to confirm the deception. The vendee having acquired .possession under his purchase, must have enjoyed it as long and in such a manner as to show that the delivery to him was not merely formal or colorable, before he can safely transfer it back to the vendor: Breckenridge v. Anderson, 3 J. J. Marshall 714; Jarvis v. Davis, 14 B. Monroe 529; Stevens v. Irwin, 15 Cal. 503.
It is urged, however, that the error of the instruction complained of in this assignment consists in this, that it left out of view the fact in evidence that the vendee had resold to the plaintiffs, who had stamped the timber with their mark, and such being the case, it was competent for the original owner to have possession under a contract to run it to market, communicated to the new purchaser, and a sale by the bailee, under such circumstances, could in no manner affect the title of the plaintiffs. It might be enough to say, as to this suggestion, that if the law were as contended, it should have been embodied in a written point, and the specific instruction of the court upon it requested; for “it is hardly possible for any court to charge in such language as to comprehend every possible point of view in which the ease might be put, or to notice every exception to the general rules of law. If the party wishes an explicit answer in relation to any particular point, it ought to be brought to the view of the court directly.” Sergeant, J., in Churchman v. Smith, 6 Whart. 152. That a mere omission of a judge to charge on a particular aspect of a case is not error when his attention is not called to it with a request so to charge, is the well-established law and practice of this court, as settled in a long line of cases, from Churchman v. Smith to Walker v. Humbert, 5 P. F. Smith 407. But even conceding, which the ease indeed does not warrant, that the negative of such a proposition is fairly to be implied from the language of the learned judge, it is not easy to see upon what principle or reason the subsequent sale and marking could make any difference — the possession remaining all the while in the original owner. This was the hypothetical fact upon which this instruction was based, and whether the fact was so was left to the jury to say. Every sale subsequently made, even supposing the original owner to have been a party to it, was but a repetition of the first transaction, by which the vendor, being put in full possession under a secret contract, was thereby enabled to commit a fraud upon others. If the plaintiffs had been the hundredth in a regular line of succession as vendees, it would not in the least have strengthened their title. *250Every succeeding vendee leaving the original vendor in possession, stepped into the shoes of the first vendee; and of each one it may be predicated that though he may himself be innocent, yet as the cause of the loss sustained by another equally innocent party, he shall bear that loss.
The 2d assignment of error is as to the instruction of the court below in reference to the legal effect of the marks of the first and second vendees on the logs composing the raft. It is to be observed that these marks were not registered, so that we have not to consider the operation of the Act of April 10th 1862, Pamph. L. 383. That such marking was a sufficient constructive delivery, and had the lumber simply remained where it was until the time came for rafting it to .market, it could not have .been levied on by the creditors of the vendor, or sold by him even to a bond fide purchaser, would seem to be settled in this state by Chase v. Ralston, 6 Casey 539. But the marks not duly registered were only evidence,, of such delivery, and if immediately thereupon actual possession was redelivered to the vendor with authority to run it to market, the fact of their being on the logs could only be regarded as evidence of notice, or as a circumstance to put the purchaser upon inquiry. There were two sets of marks, the first confessedly not the mark of the original vendee, but a borrowed stamp. “If,” said the court, “the defendants had notice of the want of ownership, or from the marks on the timber had such notice as would put persons of ordinary prudence on inquiry, they cannot claim to be bond, fide purchasers.” We perceive no error in this.
The 3d assignment is, that the court erred in leaving the question of the bona fides of the defendants as purchasers to the jury, which it is contended had nothing to do with the case. But if the jury should find the fact to be that the original vendor had been continuously in possession from the period of the first sale down to the purchase by the defendants, which was the turning point of the whole controversy as we have seen, then their bona fides was certainly a very material inquiry. This instruction is of course based upon the supposition that the jury should believe the evidence given on the part of the plaintiffs to prove that there had been a sale and delivery by Griffith to McMasters. If there had not been, they unquestionably had shown no title to recover, whether the defendants were bond fide purchasers or not. But if there really had been such a sale, and the possession remained in Griffith, a sale by him to a bond, fide purchaser would give a title superior to that of the original vendee, McMasters, and the plaintiffs claiming under him.
The 4th assignment of error is, that the court erred in their answer to the plaintiff’s 3d point. This point assumed the facts, instead of being as it ought to have been in a hypothetical form, *251and it would therefore have been manifest error to have affirmed it. The plaintiffs cannot complain, then, that the court answered it by saying “ that it would be so, had not Griffith, the former owner, had the lumber all of the time in his possession, or, if formally delivered, had the possession immediately restored to him. This point is fully explained and substantially negatived in the general charge.” But in the general charge this fact which appears in this answer to be assumed, is clearly and distinctly submitted to the jury, so that they could not possibly mistake the meaning and effect of this language.
The 5th assignment of error is to so much of the charge as instructed the jury that it was unnecessary that the defendants should prove affirmatively that they knew that Griffith was the original owner of the timber when it was cut and prepared for ■rafting’. We think the court was right in this instruction. If we . recur to the original ground of the-rule, as has been before stated, it was that McMasters, by leaving Griffith in possession, had enabled him, with this indicium of ownership, to direct the inquiry , of the defendants to the fact, which was undisputed, that he was the owner of the land upon which the timber originally grew. The law presumes that the purchaser acted on his personal knowledge or made due inquiry. In nine cases out of ten it would be impossible for him to give evidence of this knowledge or inquiry. To require it in every ease would be practically to abrogate the rule altogether.
We think, however, that the 6th error assigned must be sustained, Nothing seems to be better settled than that considering Griffith as a mere bailee — employed to carry the lumber to market — he forfeited all lien for the hire and expenses, if he ever had any, by his wrongful sale to the defendants. He was not a factor to sell within the provisions of the Act of Assembly of April 14th 1834, Pamph. L. 375. A bailee may indeed transfer his claim, and with it his lien and the possession of the thing, as security for his claim, for that is a rightful act, and indeed amounts to a mere appointment of the assignee' to keep possession as his servant or attorney, and the lien is not thereby extinguished, for the possession still continues properly to be the possession of the bailee. That was the principle of Hoover v. Epler, 2 P. F. Smith 522, where a groom having paid a farrier’s bill for shoeing a horse, was entitled to his lien. But it is entirely different where there is a wrongful sale or pledge by the bailee of the thing itself. That puts an end to his possession, and with it his lien. It is a conversion both by him and the party to whom he so wrongfully transfers the title: Story on Agency, § 367, and the cases there cited. Under the positive direction on this point, given by the learned judge below, the jury may have found their verdict for the *252defendants, although they may have been with the plaintiffs on all the other questions in the cause.
Judgment reversed, and venire facias de novo awarded.