
    Bush against Henry Lyon and Harvey Lyon.
    NEW YOItK1
    May, 1828.
    To tr,oye¡"’ plaintiff warrant the must show a present right of possession in the chattel- if it appear to have been plpdgecb by,the plaintiff's vendor, before the saje, in, or.der to segure a debt or duly to a third person, the plaintiff cannot recover, unless he show such debt ór <Juty "to have been discharged, or that the. operation of the pledge, tías ceased in. some other.way.
    One who claims property in himself in the chattel in question, in trover, is a competent witness for the defendant to show such property, whether it be special or general.
    Trover, to recove? the value of a quantity of staves, tried at the. Monroe circuit, March 15th. Birdsall, C, Judge. 1827, before • -
    *To show title, the plaintiff produced a written contract with ope Coonrad, dated January 4th, 1825, by which Coonrad agreed to deliver to the plaintiff, on the canal, . w ' 40,000 pipe staves, and 40,000 hogshead staves, at $14 per thousand for pipe, and $9 per thousand for hogshead staves. On the back of the contract, Coonrad certified, (on the 28th of January, 1825,) that he had delivered to the plaintiff all the staves which he had made on Sina Wilcox’s land. (There were no others in controversy.) They were turned out as security for advances on the contract, which advances, then, were $160, 29; and in February and March following, $73, 53; in all $233 82; and $51 were also paid, for which a separate receipt was given. The staves were then estimated at 40,000, and delivered to the plaintiff. They were then on Wilcox’s land, some distance from the canal. Coonrad was to draw them to the canal. The hogshead staves were worth $12, and pipe staves worth $16. There were 16,000 barrel staves turned out to the plaintiff at the same time, worth $6 per thousand. These facts were communicated to Henry Lyon, one of the defendants, before he purchased of Coonrad. Before Lyon purchased, the plaintiff had forbidden him to take the staves, but he said he should take them. Helen Mead, a witness, produced an instrument in writing, dated May 6th, 1825, from Coonrad to himself and Henry M. Starkes, conveying the staves and sundry other articles, as security for their being surety with him, (Coonrad) in several bonds and obligations. Mead and Coonrad sold the staves to the defendant Henry Lyon.
    The defendants proved that about the 1st of January, 1825, one Christopher Worden and Coonrad bought the timber of Wilcox, from which the staves in question were made. Worden sold his interest to Coonrad, about a week after. About the 10th or 12th of January, Coonrad contracted with one Smith, of Lockport, to deliver him 25,000 staves. Worden became security for Coonrad to Smith, and Coonrad turned out to him (Worden) the staves and timber on Wilcox’s land, to indemnify him. In April, Worden transferred all his *interest in the staves to Henry M. Starks, who was substituted in Worden’s place as security for Coonrad to Smith.
    
      Starkes was then offered as a witnéss for the defendants, and objected to on the ground of interest, and rejected. The defendants then offered a release from. Helon Mead to Starkes, and from Starkes to Mead, and from Starkes to he defendants, and from Henry Lyon to Starkes; but the judge rejected him.
    Soon after Starkes was put in the place of Worden, he and Coonrad and the plaintiff were together, and it was agreed that Starkes should draw the staves from Wilcox’s land to the canal, and have half for drawing. The plaintiff agreed to look to the other half for his pay. They agreed that half would be sufficient to pay the plaintiff, and Smith’s claim, for which Starkes was responsible. Starkes said he should hold on upon that half till Smith was paid. The plaintiffs did not object. One witness testified that he heard Coonrad say to the plaintiff, in presence of Starkes, that he had forfeited his contract, to which the plaintiff assented, but said he had a claim for money advanced. Starkes was again offered as a witness, and rejected.
    The judge charged the jury, that the plaintiff’s action was sustained for so many staves as were delivered to him on the 28th of January, 1825. Coonrad then conveyed all his title. The conversion was fully proved. That the transfer from Coonrad to Worden, and from Worden to Starkes, could have no influence, but to diminish the damages; that Worden had but a lien and that not to exceed $126. It might be nothing. The amount was not shown. That Coonrad did not dispose of his whole interest to Worden, and the plaintiff had the residue. That Henry Lyon, if guilty, should pay the full value, as he had full notice. He submitted to them whether the plaintiff had relinquished his claim. That if the plaintiff was entitled to the property, he should recover the full value, deducting half for those drawn by Starkes, and a reasonable amount for the responsibility to Smith. That the community of interest between the plaintiff and Starkes, formed no objection to a recovery; that, even if tenants in common, this action would lie under the circumstances of the case. *That in the opinion of the court, the plaintiff should recover of Henry Byqn, bufe the amount, was referred; exclusively to the jury,
    The defendant’s, counsel request edthe. judge to. state to tbe jury whether the plaintiff could maintainthis aption.if; the jury shouldibe of opinion- that Starkes had; a lien on,the staves, until the lien was paid off, or a tender, mails.. The: judge, declined charging the. jury on that, point, qn. the ground that,, so far ap it.concerned this case, he bad already-decided it in his charge,. Yerdict for plaintiff, fqr $388,33.
    
      J.A. Collier, for the defendant,now mqvedfor a new trial.
    
      C. P. Kirkland, contra.
   Curia,, per Savage, Ch. J.

The- questions., presented- for the consideration of this, court are, !. Had the plaintiff such, a property in, himself as would enable him,to maintain trover? 2. WasHenry M. Starkes a competent, witness ?

1;. As. tq property in the-, plaintiff. There, is nO- doubt, that the whole- property, at the. time, of the. contract between Coonrad- and the plaintiff, was, in Gqpnrad',. he having purchased the timber of Wilcox,, about the- 1st. of; January, 1825, The. contract w.as on the. 4th of January, 1825, By that contract no title to the- property passed-; but Goonrad then contracted to. deliver- the staves on. the-firs.t of June-then next.. On. the 10th of January, Coonrad' contracts w.ith Smith of Jmckport, to deliver him. 25,000. barrel staves, and Christopher- Worden, became surety to Smith for Goonrad’s. performance. A few days.afterwards, Coonrad delivered td-Worden, all the staves he had made, and all the timber on Wilcox’s land, as his, security for having joined, an surety for- Coonrad. to Smith.. On the 28th. of January, 1825, Coonrad delivered; to, the plaintiff all. his staves, and, timber on- Wilcox’s- land, as, security for the goods and money advanced by the plaintiff on the-com tract of: the 4th.

About th.e- 1st of April, 1825, Worden became uneasy in his situation, as- surety for Goonrad; and it. was agreed between him, Goonrad,. Smith, and Starkes, that- Starkes ‘should step into Worden’s place as. surely, and should e staves as his security, which.was accordingly , , f; this arrangement Worden informed-the plaintiff,, and that ne, (Worden) had relinquished all his rights in-the. staves, to Starkes.

On the 6th- of May, 1,825, Coonrad, sold- the stay.es ons Wilcox’s land to Helon Mead and Starkes,. fpr money he owed them, and responsibilities incurred. Mead-, and Coon-rad afterwards, sold to the defendant,,Henry Lyon, 23,000 staves.

It seems, then, that; before the ¡transfer Qfthe staves-from; Coonrad to.the plaintiff,. they hadbeen pledged to Worden, in whose-place Starkes .was substituted,; Starkes.tbenheld them in pledge as. his indemnity for having become surety for Coonrad in his contract with. Smith, The judge very-properly remarks, that- it does not appear what that responsibility was; it might be $150,. (the value of 25,000 barrel staves,) or it, might be nothing; for it. does not appear whether, Smith, had' advanced anything on the* contract, or whether the contract had beenbroken. The staves were, however, pledged to. Starkes as his indemnity. This- was a, lien, older than the plaintiff’s.. The. transfer- to-the plaintiff seems to have,been by way ofpledge too, but in-effect-, placed-the plaintiff in Coonrad’s place on the 1st of June, when the contract expired, and the plaintiff might consider the staves his. own. He,, however, had then no greater rights than Coonrad would have had, had he not conveyed the staves to.the plaintiff. The plaintiff had not the actual possession; for Mead and Coonrad had sold the staves to the defendant Henry Lyon. He had not fhe right of possession until" he had redeemed’ the pledge to Starkes. In contemplation of. law the staves must be considered in possession of Starkes. The case, does not state when, the-contract with Smith was to be performed-; the presumption, however, cannot be that it had been performed. The prop: erty being shown to have been,pledged, the plaintiff "should have shown that the lien had been discharged; Not- haying done so, the possession and right of possession were in Starkes, until the power was redeemed, The plaintiff’ therefore had not that property in the staves which is necessary to maintain this action.

*If I am right in the conclusion to which I have arrived, it is not necessary to the decision of this case, to take notice of the other point. But, as it has been argued and has been examined, I may properly state my conclusion upon it also. In trover, the real owner of the chattel is, in general, competent to defeat the action by proof of property in himself; for the record will not be evidence for him in any other action. (Stark. Ev. 1508.) In Mix v. Cutting, (4 Taunt. 18,) a witness was permitted to testify that he had received the property in question from the plaintiff as a security for money, and that according to his agreement with the plaintiff, he, the witness, had sold the property to the defendant. Mansfield, chief justice, said, the question is, whether the witness who bought a horse of the plaintiff is competent to prove that fact. I cannot possibly see any objection to his proving it; for, as between the witness and • the plaintiff, or the witness and the defendant, the verdict which is obtained upon his testimony in this cause will be of no avail to him. So in Ward v. Wilkinson, (4 B. and A., 410,) it was decided, for the same reason, that a witness may prove property in himself. On both grounds, therefore, a new trial should be granted.

New trial granted  