The opinion of the court was delivered, at the circuit session in June, by
Redeield, Ch. J.The important question, and, in one view, the only question in the present case, is, whether a bailment, coupled with an interest, is a sufficient title to enable the bailee to recover the value of the goods of one to whom he entrusts them for the purpose of transportation, the bailee in the second instance not being a common carrier, but only a special one, and liable for ordinary neglect.
The general principle of the law in regal'd to this point seems to us sufficiently settled. Ordinarily, any one having the possession of goods, even by finding, or by tort, has a sufficient title to recover the value against a mere wrong-doer, or any one who undertakes to perform service about the goods, and fails in ordinary skill and diligence. This principle of the law is of very long standing. The person who is guilty of tort, or who fails to perform his duty according to his undertaking, or the general obligation of his craft or position, cannot ordinarily dispute the title of him from whom he took, or received the possession. Naked possession is a sufficient title against all the world, except him who has a superior *272title. And the law will presume the possessoi’, eithe'r by finding, bailment, or mere tort, has the consent, and the title of him in whom resides the better right, until he shall connect himself with the wrong-doer in some way. Until that, the wrong-doer must show a right to do as he has done. It is no justification -to him, to impeach the plaintiff’s title.
Accordingly, it is every day’s practice in the courts of common law, for the bailee, who is not accountable over, to bring suits for any injury to the goods either by force 'or negligence. Accordingly the hirer of a horse, or one who has him in possession, by the consent of the owner, may sue any one who commits a direct trespass, or who fails in duty, either express or implied, in regard to the property. It was never heard, in such case, that the trespasser, the mechanic who shod, or the inn-keeper who kept the horse, could excuse their own misconduct or failure in duty, by showing a right in some third person, superior to the bailors’. But in all these cases it is an undisputed point, that the general owner may sue also, if he choose; and if the suit is brought by the special owner, the law presumes it is by consent of the general owner, and he alone can interfere.
And in our judgment, the case of a common carrier of goods, who employs the assistance of others in accomplishing his own undertaking, whether those persons be private persons or other common carriers, may maintain an action for any tort, or breach of duty or obligation in such persons, and the action is not defeated, by showing that such carrier has not paid the owner of the goods. And this, notwithstanding the general owner might also sue. The right of action in such case is not, in any sense, dependent upon having indemnified the owner for his loss, or even of being liable to do so; but upon ¡mssession coupled with an interest, or in other words possession, independent of the general owner. For if the possession be that of the owner, as in the case of a servant, the action must be brought in the name of the general owner. But in all cases where the plaintiff had, at the time of the injury, the actual possession, or where he delivered the possession to the defendant for some specific purpose, he may sue, and the action cannot be defeated, through any defect of title in the plaintiff; 1 Chitty’s Pleading, 51. Both the general owner and the special owner can*273not sue at the same time3 and judgment in favor of one is a bar to a suit by the other; 2 Saund. 47 b.; id. c. d; Bull. N. P. 33. The numerous cases upon the subject will be found referred to in these elementary works, and need not be here repeated. And if the plaintiffs had hired this boat for use, even for a single trip, they might undoubtedly recover the loss in this action. For that would give them the possession, and a special inter.est or property in the boat. And the fact, that the plaintiffs had the boat in their joint use, would seem to give the same right to sue a stranger to the title, for an injury, as if they had obtained it of a third person. The boat was clearly in the joint use of the plaintiffs, and the earnings were then- joint property. If a stranger had owned it, the recovery would make them liable to pay the owner; and so, in the present case, the recovery will enure for the benefit of the owner as between the plaintiffs themselves. But this is not a question which the defendants can raise. The contract was between the defendants and the plaintiffs jointly; and the plaintiffs had the right to use the boat jointly, and to contract, as they did, with the defendants ; so that they are bound by the contract to the full extent, and cannot go into any questions arising between the plaintiffs, inasmuch, as the recovery is a full bar to all other claims for the boat, by any one standing in privity with the plaintiffs. So that in regard to the goods, and the boat, it would seem, the plaintiffs had such an interest as to enable them to recover for the loss; and that the instituting such a suit, and its proceeding to final judgment, by the acquiescence of the person or persons having the general property, will conclude them rights, the same precisely, as if the suit had been in them names. We think, therefore, judgment must be reversed, and judgment given for the larger sum.