
    *Duncan vs. Spear.
    
      Trover may be maintained against a stranger upon a mere prior possession obtained by a purchaser of chattels under a void execution.
    A defendant in trover cannot set up property in a third person, without showing some claim, title or interest in himself, derived from such person.
    This was an action of trover, tried at the Clinton circuit, in June, 1831, before the Hon. Esek Cowen, one of the circuit judges.
    The suit was for a span of horses. The plaintiff proved that about the first day of February, 1831, he had possession of the horses, which he left in the custody of a Mr. Ransom, and that on the tioelfth day of the same month the horses were in the possession of the defendant. Upon this he rested. The defendant proved that for a long space of time previous to the plaintiff’s possession of the horses they had been in the possession of one Loman Reid. The plaintiff then proved that on the second day of February the horses in question were levied upon by virtue of a justice’s execution in his favor, against Reid, and that on the ninth of the same month they were sold by a constable under that execution, and purchased by him ; that on the seventeenth of the same month the horses having come into the possession of the defendant in this cause, the plaintiff demanded them of him, and he refused to deliver them. The plaintiff also proved that on the first day of February a judgment by confession had been entered in his favor before a justice against Reid for $73,82, damages and costs, on which the execution issued under which the horses were sold. The defendant proved that Reid at the time of the issuing of the execution was a householder, having afamily, which fact was known to the plaintiff and to the justice. The plaintiff proved that on the first day of February, 1831, he made oath before a justice that he had as he believed good cause of action against Reid, against whom he made application to the justice for two processes by warrant, and that he was in danger of losing his demand; that upon such oath the justice issued two warrants in his favor against Reid, in assumpsit for goods *sold and delivered: that on the same day Reid was brought before the justice, having been arrested on one of the said warrants, and the plaintiff being present, Reid confessed the judgment for $73,32; that at the time of the rendition thereof, the plaintiff applied for an execution, offering to make the oath required by law in such cases ; that the justice declining to administer the oath, on the ground that he had already the plaintiff’s oath of danger, referring to the oath taken on the suing out of the warrants, and on the basis of that oath the justice issued the execution. Reid was present at the time the execution was demanded, and the offer made by the plaintiff to take the oath required by law; he made no objection to the proceedings, but said he should go and procure bail to stay the execution, but did not procure bail; whereupon the execution issued. The judge nonsuitedjhe,plainúff, who now, upon a bill of exceptions, moved to set aside the nonsuit and asked for a new trial.
    S. Stevens, for the plaintiff.
    "The plaintiff was entitled to sustain the action up on .his naked prior possession. His title resting upon possession alone, was perfecTagam^Tairtiie^^üIfféxcept Reid, who alone could object to the validity or regtiadty;qf_the. .execimoñZ3to31rI¡3imh__the_gurehase--was made of the horses. In M'Laughlin v. Waite, 9 Cowen, 670, it was conceded that the finder of a chattel may maintain trover for its conversion against every person but the rightful owner. Even Reid could not object to the regularity and validity of the execution ; the justice had jurisdiction of the parties and of the subject matter, and if he erred as to the nature or sufficiency of the evidence upon which the execution issued, such error did not render the execution void. 5 Wendell, 170. 5 id. 240. Besides, the plaintiff having on the same day made oath that he was in danger of losing his demand, a second oath was unnecessary. And again ; it is submitted whether the statute requiring an oath to justify an execution is applicable to justices’ judgments on confession for an amount exceeding $50. The statute staying executions for 30 and 90 days seems applicable only to judgments for $50 and under. *Where the judgment is for a greater amount, execution may issue forthwith, unless a stay is agreed upon. 2 R. S. 245, § 113.
    J. A. Spencer, for the defendant
    In trover, as in ejectment, the plaintiff’s right to recover depends upon the strength of his own title, and notupon the weakness of his adversary. In trover, property in another is a good plea ; not so In trespass. Prior possession gives the right to recover, but here the plaintiff did not rely upon" that title ; he undertook to show his right to the property, and the presumption in his favor arising from the prior possession was destroyed by the evidence. If a party himself shows that his possession is unlawful, the presumption of ownership arising from possession is destroyed. A trespasser cannot maintain an action for property of which he has wrongfully come into possession. An execution could not regularly issue before the expiration of 90 days without oath of danger, and such oath was not made ; the oath taken by the plaintiff on obtaining the warrants was not in the same suit in which the execution issued ; there was no connection between the two proceedings, and the oath had no reference to the issuing of an execution. If the execution was voidable merely, the effect is the same as though it was void, justices not having the power to amend. The cases cited from 5 Wendell do not help the plaintiff; a party cannot avail himself of the principle applied in those cases for the protection of ministerial officers,
    
   By the Court,

Sutherland, J.

The defendant cannot set up property in a third person without showing some claim, title or interest in himself. The plaintiff showed at least a claim of property ; the horses were in his possession and the possession of his bailee, claiming them to be the property of the plaintiff, only a few days before they were found in the possession of the defendant. This is sufficient to put the defendant upon showing by what right or title he holds them. He cannot set up the title of Reid, with which he has no connection ; and admitting the execution and sale under which the plaintiff purchased the horses to have been absolutely *void, as between him and the defendant, it appears to me it cannot affect the character or legal consequences of his prior possession. The nonsuit must be set aside.

New trial granted.*  