
    
      Bank of Kentucky vs. C. P. Shier.
    
    The mere possession of a chattel is sufficient to maintain trover against all persons but the rightful owner.
    A sheriff seized goods under an attachment, and delivered them to the plaintiff in attachment, to be taken out of the district and sol 1 — an agent of the plaintiff having, before the delivery, given the sheriff a bond of indemnity. Held that, although the delivery by the sheriff to the plaintiff was irregular, yet the plaintiff might maintain trover against a wrong-doer who took the goods out of his possession.
    On the trial of the action of trover, the agent of the plaintiff, who, as obligor, was bound to the sheriff on the bond of indemnity, was offered as a witness for the plaintiff, and it was ruled that he was competent.
    When the interest of a witness is not clear, the inclination of the Courts is to let the objection go to his credit.
    Defendant examined a witness to prove a fact, which he failed to do.. Held, that defendant could not give in evidence a letter of the witness, either to prove the fact, or to contradict the witness.
    Where parol evidence of die contents and effect of a written instrument, wholly immaterial to the issue, is given, it is, it seems, no ground for a new trial that the party was not first required to prove its execution, and to give an excuse for its non-production.
    
      Before O’Neall, J., at Charleston, May Term, 1850.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of trover for the recovery of the value of fifty-one head of cattle, converted by the defendant to his own use. The cattle once belonged to Cloud & Gay, dealers in cattle in Kentucky. They were largely indebted to the plaintiff and to other persons. Indeed, they were clearly insolvent before the 1st of April, 1849, — and that fact fully known to Collins, who was in the possession of this drove as their manager. The plaintiff sent on to B. D. Boyd, cashier of the Commercial Bank, Columbia, two bills, drawn by Cloud & Gay, one of September, 1848, for $3,000, payable five months after date ; the other, 10th January, for $2,000, at ninety days- These bills were protested for non-payment, and the liability of the drawers established. The plaintiff regularly constituted B. D. Boyd its attorney, to act for it in the premises, and gave him authority to constitute an attorney under him. He, in the name of the plaintiff, and for its use, instituted suit in Lexington District, South Carolina, by attachment against Cloud & Gay on the bills. On the 24th of March, sixty head of cattle, and twenty-two head of sheep, their property, were seized by the sheriff of Lexington, and delivered to him for the plaintiff; and were by him sent on to Charleston, and sold and delivered to the Big Butcher Company, to which Cloud & Gay had contracted to deliver their successive droves of cattle for the season. On the 7th of April, 1849,'the sheriff of Lexington found this drove of fifty-one head of cattle at Leaphart’s, in Lexington, north of Saluda, and no white person in possession, save Bartlett Dudly, who was served with a copy of the writ of attachment, and said they were the property of John W. Hodges, but made no claim to them in his own right, or for Hodges, which the sheriff could notice, and who could not- or did not give bond. The sheriff, therefore, took possession of the cattle, and, upon B. D. Boyd giving him a bond of indemnity, they were delivered to hipa for the Bank of Kentucky. The cattle, after being attached, were driven by Dudly to the Saluda Bridge. They were then taken out of his possession by the sheriff, and placed in the actual custody and possession of one Bowers, who was employed by Boyd, for the Bank of Kentucky, to drive them to Charleston, and deliver them to W. K. Davis, who had been by Boyd appointed the attorney of the Bank of Kentucky, to receive, sell and deliver the cattle to the Big Butcher Company. He, with one John Hatcher, went on with the cattle. Dudly went over to Columbia; and, by the advice of Nathaniel Pope, was employed by Boyd for the Bank of Kentucky, to assist in driving the cattle to Charleston; he, accordingly, joined the drove and assisted in driving the cattle. They went on to the eighteen-mile house, where they met John Hodges, who insisted the cattle were his, and that Dudly, who was driving the cattle when attached, was his servant; and that they were still in his possession. Bowers, however, put up the cattle and paid the bill: there was also proof by Dudly that Hodges paid the bill. Bowers finding, as he alleged, that Hodges was endeavoring to possess himself of the cattle during the night, at the eighteen-mile house, started the cattle before day, and, with Hodges in company, drove on to the four-mile house, where the cattle were put up in Bradley’s pen. Hodges contended he put them in it; but Bradley, the owner, proved that they were put in his pen by Bowers. Here they were met by Nathaniel Pope, who had been sent down by Boyd for the Bank of Kentucky, to superintend the average and delivery of the cattle; and also by Wm. K. Davis, the attorney under Boyd of the Bank of Kentucky. Hodges wished Davis to agree that the cattle should be considered in their united possession. This he (Davis) distinctly refused. After some altercation, they left the cattle in Bradley’s pen, where it was understood they would remain for the night. Pope, according to the proof, pledged himself they should so remain. He went also to Charleston; but, after night, (ten or eleven o’clock,) he returned to the four-mile house, saying he had passed his word the cattle should remain in Bradley’s pen till morning; that whatever had been, or would be done, would be without his knowledge. It appeared from Bradley’s proof that his pen was not secure, and that, in consequence of this, he would not be responsible for the cattle, and advised their removal to Disher’s enclosed lot. Bowers applied to Disher, and he consented. Disher was one of the Big Butcher Company, to whom the cattle had been contracted by Cloud & Gay to be delivered, and to whom the Bank of Kentucky intended to sell and deliver them. In the night the cattle were removed by Bowers, assisted by Dudly, and locked up in the pen of Disher. In the morning, Hodges sold to the defendant for the Little Butcher Company; and, after various attempts on the part of Disher and his associates of the Big Butcher Company, to obtain or retain peaceable possession of the cattle, upon which condition they were to become purchasers, John W. Hodges broke down the fence,.in the absence of Davis, Disher and Pope, and delivered the cattle to the defendant. Davis, the attorney for the Bank of Kentucky, demanded, next day, the cattle from the defendant — he refused to give them up, and thereupon this action was brought. The value of the cattle was proved, and the plaintiff’s case closed. A motion was made for a nonsuit, on the ground that the plaintiff had failed to show title. I ruled and held—
    
      “ 1st. That on this motion, I must assume that the plaintiff had the possession of the cattle, when Hodges forcibly took it, and that this was enough to sustain this action.
    
      “ 2d. That the sheriff of Lexington, by virtue of his levy of the attachment, was rightfully in possession, and had placed the plaintiff in possession in his right; and, although this might be irregular, the defendant, a third person, could not make the objection — and that the possession thus acquired was enough, prima facie, to maintain this action.
    
      “ The motion for nonsuit was overruled, The testimony of B. D. Boyd, it may be remarked here, was objected to, on account of his bond of indemnity to the Sheriff of Lexington; but that, I thought, did not affect his competency. For whether the plaintiff gained or lost the case did not discharge his liability. Notwithstanding a recovery here, Cloud & Gay, or perhaps even Hodges, could sue the sheriff of Lexington, and then, if a recovery by either was had, Boyd would be liable to the sheriff. The defendant then went into his defence, and undertook to prove that Hodges, before levy of the writ of attachment, to wit, on the 1st or 2d of April, had bought, bona fide, the entire, drove of cattle from Thomas Collins, the agent of Cloud & Gay, fully authorized by them not only to drive, but also to sell their cattle. Collins proved that, owing to the claims upon him for the support of the cattle, and also for the debts of Cloud & Gay for the support of other cattle previously driven, he thought it best to sell this drove, when he reached Hodges’s at the toll-house, in the Saluda Mountains. He had previously, he said, lost six head of his drove by attachments levied on them. He, too, knew the previous drove had been attached in Lexington, by the plaintiff. He sold the fifty-one head for $1467. (This was about two-thirds of their value in Charleston.) He was paid, he said, in notes on other persons, and $120 in Cloud & Gay’s due bills to Hodges. He^said he had not paid the proceeds to Cloud &. Gay; indeed he said only about $600 had been paid on the notes. He said he reported the sale to Cloud & Gay, and they confirmed it. Other witnesses, Prince & Barton, proved the sale. Barton proved that Collins said Cloud & Gay owed him $800, and he wished to secure himself, and save all he could for Cloud & Gay. Collins said he knew the cattle would be attached. B. F. Cloud, of the firm of Cloud & Gay, was examined by the defendant, and proved that Collins was merely the conductor or manager of the drove; he had no general authority to buy or sell; he was not authorized to sell this drove; he was to take the cattle to Charleston, and deliver them to the Big Butcher Company. He said, on Collins reporting the sale, he, believing it to be the best which could be done, approved and confirmed it; but he had previously conveyed all his interest to Gay, to pay their debts. Here the defendant wished to read a letter from Cloud, to contradict his testimony. This is what I suppose is meant by the first ground for a new trial. It was excluded, as incompetent for the defendant to impeach thus his own witness. Hibler proved that he was present at settlements made by Gay with Collins, and he thought him a general agent. Bartlet Dudly proved the sale to Hodges, and that it was fair; but his testimony was completely destroyed by proof of his statements to Hatcher, Pope and C. P. Bradley, that the sale by Collins to Hodges was a mere sham, collusive and fraudulent. John Hodges, the father of John W. Hodges, and as his agent, accompanied the drove from the Saluda Mountain to near Leap-hart’s, where he left it and went to Columbia. There, after the attachment was levied, he offered to Boyd, the agent of the plaintiff, that if he would pay the expenses, he would abandon all claim. On the bill being presented, it was so monstrous that Boyd would not pay it.
    “ The jury were instructed to inquire—
    “ 1st. Had the plaintiff shown right of property in the cattle? This, they were told, depended upon the question — had the Bank of Kentucky, by their agent, or agents, actual possession of the cattle, from the time they were delivered by the sheriff of Lexington, to the time Hodges took them out of Disher’s pen. They were told, if they found this fact for the plaintiff, it was, prima facie, evidence of right: at least, enough to put the defendant on the proof of a better title. Here the jury were told that the delivery by the sheriff to the plaintiff might be, and I thought was, irregular, yet it did not lie in the mouth of a defendant, a third person, to make that objection.
    “ 2d. They were told to inquire whether the defendant had shewn a better title than that of the plaintiff, resting on possession. This depended on the questions — first, whether Collins was the agent of Cloud & Gay, to make this sale, or generally to sell their cattle, without any other limit than his discretion.— And, second, whether the sale was bona fide.
    
    
      “ The jury found for the plaintiff the value of the cattle, with interest from their conversion, making an aggregate sum of about $2,100.”
    The defendant appealed, and now renewed his motion for a nonsuit, on the ground—
    That the plaintiff had no title upon which an action of trover could be maintained.
    And, failing in that motion, then he moved for a new trial, upon the following grounds:
    1st. Because his Honor, the presiding Judge, would not allow to be produced in evidence a letter of B. F. Cloud, admitting the general agency of Thomas Collins.
    2d. Because his Honor, the presiding Judge, ruled that B. D. Boyd, the surety on the attachment bond, was a competent witness.
    3d. Because his Honor charged the jury, that the possession of the plaintiff was sufficient to enable them to maintain this action, while he also charged them that the sheriff had illegally delivered them possession; which two propositions, it is respectfully submitted, are inconsistent.
    4th. Because his Honor charged the jury that the parol evidence of Cloud, as to a written instrument, and as to its contents and effect, was sufficient, although it was objected that nothing had been proved as to the execution of the instrument, .nor any excuse given for the non-production.
    5th. Because his Honor charged the jury that the*sale made by Collins was not made good by the confirmation of his principals, when it was proved that both the partners had confirmed the same.
    Memminger, for the motion.
    
      DeSaussure & Son, contra.
   Curia, per

Evans, J.

Ever since the case of the chimney-sweeper’s boy, who found a jewel, (Armory vs. Delamirie, 1 Stra. 505,) it has never been doubted, so far as I know, that the mere possession of a chattel was a sufficient title to maintain trover against all persons but' the true owner: (2 Taunt. 302; 2 Bingham, 173.) But it is argued, in this case, that, because the sheriff of Lexington delivered the cattle to the plaintiff, in violation of his duty, a different rule should be applied. That this proceeding was irregular is very certain, and the sheriff is liable for any injury which those having'an interest in the cattle may sustain: but that will not authorize a wrong-doer to disturb the possession of the sheriff’s bailee. It is said, in 3 Stephen’s N. P. 2668, that a sheriff in possession, a carrier, a factor, a consignee, a pawnee, a gratuitous bailee, and persons responsible over to their principals, may maintain trover on their possession; and, in Duncan vs. Spear, (11 Wend. 54,) it was decided that trover may be maintained against a trespasser, on a prior possession obtained by a purchaser of a chattel under a void execution. The reasons, as well as the authorities, I think, go to this extent —a stranger, or wrong-doer, has no right to put one in possession to the proof of any other title but that which the law presumes from possession alone. The rule is the same in relation to real estate. If Shier could have succeeded in establishing Hodges’s title, under the purchase from Collins, then he would have established in himself a right of property, which draws to it a right of possession, and should have succeeded- in his defence. But this he failed to do; and was, consequently, liable to the plaintiff for taking the cattle out of their possession. This is all that need be said on the motion for a nonsuit, and the third ground of the motion for a new trial. The first ground alleges error in the. refusal of the Circuit Court to allow the defendant to give in evidence the letter of Cloud, admitting the general agency of Collins. If one offer a witness to prove a fact, and he does not prove it, he may still offer other evidence to prove the same fact; but he cannot do this by proof that his witness had, at another time, made a different statement. His declaration, in opposition to his oath, would not prove the agency, and could not be received for any other purpose than to discredit him; and the rule is very clear, that one shall not be allowed to discredit his own witness.

The second ground alleges that Boyd was an incompetent witness. It is alleged, in the notice, that he was the surety on the attachment bond. This is a mistake. He had given to the sheriff a bond to indemnify him against any liability for delivering the cattle to the plaintiff. If, under these circumstances, he was incompetent, it must be because he had an interest in the result of the suit, or the record would be evidence for or against him. I do not perceive that either of these are true. In Walton vs. Shelly, (1 T. R. 300,) Lord Mansfield said, the modern inclination of the Courts was, to let the objection go to the credit, tmless the interest be clear.

In the examination of Cloud, he said Collins was not authorized to sell the drove; he had no general authority to buy or sell ; he was to take the cattle to Charleston, and there deliver them to the Big Butcher Company; that, on Collins reporting the sale, he, believing it the best that could be done, approved and confirmed it, but he had previously conveyed-all his interest to Gay to pay their debts. It was insisted on the trial that this conveyance should, have been produced and its execution proved, or some excuse given for'its non-production. This is the subject of the fourth ground in the notice. The general rule is very clear, that, where there is written evidence, parol evidence is inadmissible, if-the fact in any way constitute a part of the evidence of the plaintiff’s title or the defendant’s defence. But the rule is otherwise where the existence of the paper is merely a collateral circumstance, and no part of the title, although an inference favorable to the right of the party arises out of the execution of it. This question I consider as settled by Lowry vs. Pinson, (2 Bail. 324). But the fact whether Cloud had conveyed, as he said, was wholly immaterial. It is clear from the evidence that Collins was but a special agent to drive the cattle and deliver them in Charleston. As such special agent, he had no authority to sell. Powell vs. Buck, (4 Strob. 427.) If Hodges had any title, it is to be derived from the confirmation of the sale by the owners. But in the mean time, as I understand the facts, the sheriff had levied the writ of attachment: — of course the title, thus acquired by the sheriff, and the lien of the plaintiff’s attachments, could not be defeated by Cloud’s subsequent confirmation, even if no such conveyance had been made.

I think, therefore, there is nothing in any of the grounds of appeal which authorizes the interference of this Court, and that the motions should be dismissed ; and it is so ordered.

O’Neall, Frost, Withers and Whitner, JJ., concurred.

Wardlaw, J.

A plaintiff’s right to maintain trover depends upon his right of possession. Property, general or special, raises an implication of the right of possession: and bare possession is of itself prima facie evidence of such right. Against a trespasser, the presumption of right, which arises from possession, ordinarily subsists unrebutted, notwithstanding evidence given by the trespasser that the title is in a third person: for it will against the trespasser be further presumed that the possession-was held by the assent of the owner. If, however, it should be made to appear that the possession of the plaintiff was wrongful, and in opposition to the will of the owner, who was entitled to the possession, even a trespasser, if he should not, by such evidence, entirely defeat the action, would certainly reduce the damages to a trifle. In the case of Armory vs. Delamirie, if it had appeared that the chimney-sweep had stolen the jewel, and the owner had been present, demanding it, it is not conceived that the chimney-sweep could have recovered the value, and the defendant have been left answerable again for the value to the owner. Damages in trover are intended to compensate for the injury done to the plaintiff’s right by the conversion; and if the plaintiff had no right to hold the possession, his claim for damages against a defendant, who had no right to take it away, rests upon the defendant’s demerit, and not upon his right.

In this case the delivery by the sheriff was utterly unlawful, and the plaintiff had no more right than such as could be derived from a sheriff’s private sale of property, levied under execution, or from any other unauthorized act of a sheriff. Acting through his agent, the plaintiff was particeps criminis with the sheriff in a plain act of official usurpation. The title was in Cloud and Gay or in Gay alone, if not in Hodges, when the sheriff seized: and the title could be changed only by a regular sale or other legal proceeding under the attachment. The special property which the sheriff acquired by levy ceased as soon as the lawful purpose of the levy was abandoned, and the property was irregularly delivered to the plaintiff, to be taken out of the sheriff’s district. The possession of Shier, derived from Hodges, who, if not a purchaser from the owner, was at least the bailee of the owner’s agent, was something better than the possession of a mere stranger and wrong doer. When the sheriff’s lawful right ceased, all the rights of the owners, their bailees and assignees, were just as if there had been no attachment: and every act of confirmation done by Cloud should be considered as if no rights of attaching creditors had intervened.

Motion dismissed.  