1. The bill of lading being shown to have been out of the jurisdiction of the court, in the hands of persons resident in the State of Ohio, the court properly ruled that it was competent to prove the contents of the paper by oral evidence. Under this state of facts such secondary evidence was admissible. — Gordon v. Tweedy, 74 Ala. 252; Martin v. Brown, 75 Ala. 442.
2. The title and property in the goods in controversy very *102obviously did not pass to Milburn under his contract of purchase. The vendors and shippers — the Brunswick & Bailee Collender Company of Cincinnati — made themselves the consignees, and by talking the bill of lading from the railroad in their own names, reserved the title in themselves, so that they continued to be the owners of the property. — McCormick v. Joseph, 77 Ala. 256. They never authorized the common carrier, the Alabama Great Southern .Railroad Company, to deliver the goods to any one except on their order, and it is shown clearly that no such order was given by the transfer of the bill of lading or otherwise.
3. The East Alabama Railroad Company, the defendant in this suit, is shown to have been in the possession of the goods tortiously, the delivery being made to them by the Alabama Great Southern Railroad Company through mistake, and by the fraudulent representations of a third person.
The latter corporation, we may observe here, being a common carrier, and being in the rightful possession of the property as bailee of the original vendors, and this possession being wrongfully displaced, it could, by virtue of its special property in the goods, maintain an action of detinue, or trover, for them, against the defendant, or any other person holding a like tortious possession without title —Story on Bailments, §§ 585, 95.
4. It may be admitted that the defendant railroad company was the bailee of the plaintiff. ' Although Milburn had no title to the goods, yet he gave to plaintiff an order for them, and the defendant, accepting the order and receiving the charges for freight, agreed to deliver them to the plaintiff on demand. This established between them the relation of bailor and bailee. Edwards v. Meadows, 71 Ala. 42.
5-6. The general rule is that the bailee is not permitted to set up a jus tertii, or title of a third person, in himself. But where the bailor has no valid title, the bailee may, on demand, deliver the goods bailed to the rightful owner, and this would be a good defense to an action brought by the bailor, the onus being on the bailee to establish the defense. — Powell v. Robinson, 76 Ala. 423; 2 Kent Com. (12 Ed.) *567. So the bailee may withhold the goods on notice or demand from the true owner, or from one having such a special property in them as would sustain an action of detinue. — 2 Herman on Estoppel, § 895. The reason of this rule is, that the bailee of the goods can be in no better situatioif than the bailor from whom he received them, and the true owner, or other person entitled to their custody and having a special property in them, can sue either the bailor or bailee, and recover from them. And no man shall be rebuked by the law for doing what the law would compel him to do.
*103In this case, as we have said, neither the plaintiff nor the defendant — the bailor nor bailee — had any title to, special property in, or rightful possession of the goods. The original vendors in Cincinnati were invested with the legal title, and the Alabama Great Southern Railroad Company with a special property in the goods which would support an action in specie for them. The notice and demand from the latter constituted sufficient authority to stop delivery to one having no title or property in them. The defendants’ duty not to deal tortiously with the property of an inuocent third person can not be affected by the failure of the depot agent, first to tender back to the plaintiff the amount of freight collected on the goods. The law will not compel the defendant to commit a tort by delivering the goods to the plaintiff, because the agent agreed to do so in consideration of the payment of freight.
The rulings of the court were all in harmony with these views, and we find no error in them.
The judgment is affirmed.