I. The plaintiff was a stranger to the charter party, and his property cannot be taken, held, or pledged to satisfy appellant's claims against E. E. Morgan's Sons. (Wright v. Solomon , 19 Cal. 76.)
II. Plaintiff did not put his wheat on board the Charles Murdock. E. E. Morgan's Sons wrongfully and unlawfully diverted it from the Pride of the Port, of which plaintiff held a charter; and appellant had and has no claim against respondent for anything.
III. E. E. Morgan's Sons wrongfully put the wheat in question on board the Charles Murdock; and a wrongdoer cannot create a lien for freight. (Robinson v. Baker, 5 Cush. 137; Stevens v. B. & W. R. R. Co. 8 Gray, 262; Ames v. Palmer , 42 Me. 197; Buskirk v. Purin, 2 Hall, 561; Saltus v. Everett, 20 Wend. 267; Fitch v. Newberry, 1 Doug. Mich. 1.)
IV. In cases like this, the rule nemo plus juris in alium transferre potest quam ipse habet prevails over the rule that of two parties he who trusts must pay. Plaintiff did not trust appellant, and did not trust E. E. Morgan's Sons to ship the wheat generally, but directed it to be sent in plaintiff's own ship. Appellant secured the possession without cost on his part. Respondent paid for the loading and unloading.
V. The factor could not pawn the goods to pay his debt or liability. Can his creditor in invitum, upon the mere fact that he has got possession under circumstances which would create a lien if the goods belonged to the factor, accomplish what could not be done with the consent of the factor?
OPINION Subsequently, upon a petition for rehearing having been filed, the following opinion was rendered:
By the Court:
The judgment was reversed here, because a demurrer interposed to the special defense had been sustained by the Court below. The respondent, in the petition for a rehearing, now claims that this action of the Court below was not of any moment, because the matter set up in the special defense might have been proved under the general issue pleaded in the answer.
It is not worth while, however, to consider this proposition now, because, even if the view of the respondent be correct, it appears by the record that the defendant offered at the trial, under the general issue pleaded, to prove the several matters set up in the special defense, but the evidence was excluded upon objection of the respondent.