26 Ga. App. 125 | Ga. Ct. App. | 1921
1. Where the ostensible owner of an automobile stored, it in a garage, to be called for later, and one claiming to be the true owner of the car instituted bail-trover proceedings against the bailee, giving bond therefor, and after thus obtaining possession of the car dismissed his proceeding in trover, and, with the consent of the defendant, the bailee procured an order of court annulling the bond under which possession of the car had been obtained, it was error for the court, on the trial of a subsequent proceeding in trover instituted by the ostensible owner, the bailor, against the bailee, for the recovery of the car, to direct a verdict in favor of the defendant, on the ground that the defendant bailee had thus surrendered possession of the car to the sheriff under the prior trover proceeding, where it also appeared that the bailee had failed in his duty to promptly notify his bailor of the former proceeding, and had failed in his duty to protect and defend in that proceeding the title of his bailor. Witherington v. Laurens County Farmers’ Warehouse Co., 23 Ga. App. 307 (98 S. E. 228).
2. While it is the general rule that a bailee is not permitted to set up an adverse title in another as an excuse for his failure to deliver the pro- ' perty to his bailor on demand, still the owner of stolen property may follow and retake it, in whomsoever’s hands it may be found. If, therefore, on the next trial the defendant shall plead, and prove to ,the satisfaction of the jury by a preponderance of the evidence, that the property intrusted to him was stolen property, and that it has in fact thus gone into the hands of the true and rightful owner, this would be a complete defense to the present proceeding.
Judgment reversed.
