
    Levering vs. Bond’s Adm’r.
    In an action of trover for corn placed in the \vai\ - nouse of the déff ndants on storage, and which the> refused to deliver, tut claimed to retain it for the payment of a debt due to them from the jdainuff forarticfos told and delivered: —ZTeW, that ?s' there was no evidence that the com was delivered to the defendants, to he applied by them to the discharge of the debt due by the plaintiff to them, c.r was placed in theiv hands as factors, with authority to sell the ■'ame. the plaintiff was «^titled to recover
    Appeal from the General Court. This was an action of Trover, brought by the appellee. The plaintiff, at. the trial at May term, 1805, read in evidence a receipt from the defendant, and one Lemmon, since deceased, and whom the defendant has survived, in the following words; “Baltimore, 27th Nov. Received from Mr. Robert Sped-ding, for account of Mr. William S. Bond, eleven hundred and thirty bushels of corn.
    
      Lemmon Levering.'’
    He also gave in evidence, by the testimony of Robert, Speeding, the person by whom the corn in the receipt mentioned was. delivered, that the delivery was made the 27th of November 1798, that the corn was the property of William S. Bond, the plaintiff’s intestate, by whom it ■ was delivered to the witness, to be sold for the use of Bond | but without any orders or authority to place, it in the hands of any other person for sale, in case he gould not dispose of it himself. That not being able to sell the corn, lie placed it in the warehouse of, Lemmon Levering, who were in the habit of receiving produce on storage, but made no particular agreement with them relative to the, amount of storage to be paid, and gave them no orders or authority to sell or dispose of the corn. lie also gave in evidence, that within g, few days after the date of the receipt, and soipe time in the month of November or Re^ cember 1,798, Bond sent a person to demand, the corn from Lemmon fy Levering, in his name, who made the demand accordingly, and informed Lemmon %■ Levering that; be was ready to.pay the. storage, as soon as the corn should be delivered. But that Lemmon S,~ Levering refused to deliver it, declaring that, they would retain it for the payr spent of a debt, due them by Bond. The defendant then read in evidence an account, which was admitted in evb dence by the plaintiff, for sundry articles sold and delivered by Lemmon fy levering to Bond and one Mrs, in ■which account the corn is credited, and leaving a balance due from Bond Mrs, to Lemmon ’<$- Levering, oil ¿613 9 3. He also gave in evidence, that Mrs, in the account mentioned, had departed this life before the time of delivering the corn, and that Bond was then indebted to gemmon $■ fevering in the sum of ¿2917 13 4, as by the. account stated. The, defendant then prayed the opinion of the court, and their direction to the jury, that if they shall be of opinion, from the evidence, and all the circumstances in proof, that the corn was delivered to Lemmon Levering, to be applied by them to the credit of Bond, on account of the debt due from Slim to, them, or was placed in their hands with authority to, sell- it as factors., that then, in either of the said cases, the plaintiff is not entitled to recover.
    The case was argued before Tilghman, Buchanan, Nicholson and Gantt, J. by
    
      JTarpcr, for the Appellant;
    and by
    
      Martin and Key, for the Appellee.
   Chare, CL. J.

The court are of opinion, that there ig no legal evidence, from which the jury can find that the corn was delivered to Lemmon §• Levering to be applied by them on account of Bond to the discharge of the debt due from him to them, or was placed in their hands as, factors with authority to sell the same. The court therefore refuse to give the direction prayed. The defendant excepted; and the verdict and judgment being for the plain-, tiff, the defendant appealed to this court.

JUDGMENT AEEJRMED»'  