
    Jacoby and others against Laussatt.
    December.
    . F oile havhif possession, the°elta!e of arwnsoivent, ver thi-m on signees of the insolvent, allegiug ihat them fora°a debtdue to solvent, uls"1" sufficient evidence of a conversion to support an ac tion of trover.
    if a supercargo who has received no from this sb ipper, to whom consign t e return goods, consign them fraudult ntly to thi- owner of the vessel, with a view to secure to him a debt due from tiie er can derive" froms^h1 signment.
    case'thesíandardotdamages is the current price of such at the time of the demand ; and the jury may -give further damages in the nature of interest.
    One who has an estate trust to pay debts, to return surplus, if any, to himself, is a competentwitness in an action of trover brought by his assignees against one of Ins creditors who claims to hold goods as a security for the debt due from the assignor; because the interest which the witness has in the surplus, is balanced by his interest in the application Óf the in the hands of the defendant to the extinguishment of the debt due to him.
    A letter of instructions written by the defendant to his supercargo, stating that A, who had purchased goods of the defendant, and shipped them by the same supercargo, had agreed that the return of his adventure should be addressed to him as a guarantee for the payment of the notes which A was to give for the amount of the goods he had sold him, is not evidence in an action by the assignees of A, to prove such agreement, though A’s letter of instructions, touching his own goods, be previously given in evidence.
    THIS case Came before the Court on a motion by the defendant for a new trial, founded upon the admission and rejection of evidence, and the alleged misdirection of Judge Duncan, before whom the cause was tried at Nisi Prius, on die 29th November, 1820. It was an action of trover for S00fls claimed by. the plaintiffs, by virtue of a deed from Francis Jacoby, by which he assigned all his property . c , . ,. , ° • them m trust tor his creditors in the manner specified m ^eec^ the trial ^ evidence was in substance asfollows: In the month of September, 1815, Francis Jacoby purchased a quantity of coffee of the defendant, which, together with other goods, he shipped in the 'ship Eagle, bound irom Philadelphia to Marseillesj and consigned them to Ambrose Laussatt, nephew of the defendant, who went out supercargo of the Eagle. Ambrose Laussatt was ordered by ‘ . . , . - . . ,, . ¿ranas Jacoby s letter or instructions to sell the goods on ^rival at Marseilles, orad invest the proceeds in silks; but there was nothing said as to the manner of sending the 3-^3 tQ Philadelphia, or as to the person to whom they were to be consigned. Ambrose Laussatt sold the coffee, &c. at Marseilles, invested th$ proceeds in silks as ordered, and sent them to Philadelphia by the same ship, consigned to the defendant on account of Francis Jacoby. Some days after arrival of the ship at Philadelphia, Lewis Neill, one of t^le plaintiffs, and Thomas Delhi, agent of Leonard Jacoby, another of the plaintiffs, called on the defendant and demanded the goods which were shipped on account of Francis JacoThe defendant refused to deliver them, alleging thatiTflizcis Jacoby was in debt to him for the coffee, and that there ^ , . ... was an agreement that the goods should be consigned to him. No further conversation passed, nor did the plaintiffs make any other demand before the commencement of this suit. The agreement alleged by the defendant was proved by the oath of Ambrose Laussatt, a witness in the cause, and positively denied by Francis Jacoby, who was also a witness. When Francis Jacoby was offered as a witness, he was objected to by the defendant on the ground of interest in the suit. His testimony, however, was admitted, and the exception noted. The defendant offered in evidence a letter of instructions written by himself to Ambrose Laussatt, the supercargo, when the Eagle, in which he was himself a shipper, sailed from Philadelphia, which, among other things, contained the following clause. “ Do not forget that Mr. F. Jacoby has agreed that you should address to me the returns of his adventure, giving them to me as a guarantee for the payment of the notes he is to give me for the amount of the coffee I sold him, which he has consigned to you.” ‘ This evidence, being objected to by the counsel for the plaintiffs, was rejected by the Court.
    The Judge charged the jury, that the demand and refusal which had been proved, were sufficient evidence of a conversion by the defendant; that all the property of Francis Jacoby passed to the plaintiffs by his deed of assignment, and therefore the plaintiffs would be entitled to a verdict, unless the jury should be of opinion that, upon the shipment of the coffee, &c. at Philadelphia, it was agreed that the proceeds should be consigned to Lhe defendant as security for the payment of F. Jacoby's notes which were to be given for the price of. the coffee; because, without that agreement, Ambrose Laussatt had no right to make the consignment to the defendant. But if such an agreement was made, the defendant was not bound to deliver the goods until he received payment of the notes. Of the fact of the agreement, he said the jury were to judge, and if they found for the plaintiffs, they were directed to consider the value of the goods at the time they came to the hands of the defendant, as the standard of damages, to which they might add damages in the nature of interest. The jury found for the plaintiffs, with damages^ccording to the charge of the Court.
    
      Phillips and C. J. Ingersoll, in support of the motion for a new trial.
    
      1. Trover cannot be maintained unless the plaintiff has . the right of possession, nor without proving a wrongful conversion by the defendant, which the evidence given on the trial does not shew. • Ambrose Laussatt had received no instructions from Francis Jacoby to whom to remit the home cargo,' and had, therefore, a right to-consign it to whom he thought proper. Indeed it was his duty, in the absence of instructions from the shipper, to consign it to the defendant, who was owner of the ship. The plaintiffs seeing some bales marked with the initials of Francis Jacoby, went to the defendant for information, and on being told that he had a lien on the goods, went away satisfied, and made no other demand prior to the commencement of .the suit. The detention of the goods, therefore, was not wrongful, nor in opposition to the plaintiffs’ demand, since they acquiesced in the reasons given for it. The law will not, in such a case, infer a conversion. To support trover, there must be a positive tortius act. Bromley v. Coxwell, 2 Bos. &? Pull. 438. Solomons v. Dawes, 1 Esp. R. 83. Isaac v.. Clark, 2 Bulst. 812.
    2. Francis Jacoby was not a competent witness. The trust of his assignment was, after paying the debt due to the United States, and certain other specific debts, to return the surplus to him. Although the probability was, that after paying all the debts there would not be a surplus ; yet this was by no means certain. It depended on the collection of outstanding debts, which, however it was supposed, could not be collected. But the assignment provided only for the payment of such creditors as should give him a release within four months, provided they resided in the United States. Of these, only two signed the release within the time prescribed, and, of course, the surplus, after paying them, would go to the assignor, and not to his other creditors. He, therefore, had a direct interest in the suit, as his testimony operated to increase’ the fund. The law on this subject is well settled. In Phillips’ Evidence, 98. it is laid down that a bankrupt is incompetent as a witness, unless he has given his assignees a release of his share in the surplus and in the dividends; because he is interested to increase the fund. In Steele v. Phoenix Insurance Company, 3 Binn. 306, the plaintiff was admitted as a witness, merely on the ground of his having given to his assignees a release of all his interest in the money which might be recovered in the action, without which 5t was not pretended he would have been competent. In M'-Ewen v. Gibbs, 4 Dali. 137. in which the suit was carried on by the plaintiff’s assignees, the plaintiff was not permitted to be sworn until he had released his interest, and the costs had been secured by his assignees. The principle of these authorities applies in full force to the case of Francis Jacoby, who has never released his interest in the money which may be derived from this suit.
    " 3. The defendant’s letter of instructions to the supercargo ought to have been received. The plaintiffs made out their case by giving in evidence their letter of instructions, and the defendant only asks to be put on an equal footing. The supercargo was the agent of both parties, and their instructions to him were evidence.
    
      4. An incorrect measure of damages was, we think, given to the jury. The true standard was what the goods actually sold for, though subsequent to the suit, without any thing additional in the nature of interest.
    Chauncey, for the plaintiffs,
    who was requested by the Court to confine his argument to the admission of Francis Jacoby as a witness, and the rejection of the defendant’s letter of instructions, contended,
    1st. That Francis Jacoby had no interest in the suit. The debt due to the United States was first to be paid, and after that, the probability was, according to the evidence, that there would not be sufficient to pay the two creditors who had released, according to the terms of the assignment, independently of those who did not execute the release. The interest at most, rested on a mere possibility, which does not exclude a witness. Falls and another v. Belknap, 1 Johns. 491. Stewart v. Kip, 5 Johns. 256. The case of a bankrupt turns on principles altogether different: he is excluded, not because he is interested in the surplus, but because he is entitled to an allowance according to the amount of debts paid out of his estate. In the present case, the assignor is entitled to no allowance, nor can he receive any thing until after the debts of the releasing creditors are fully paid. This is a sufficient answer to the case of M'-Ewen v. Gibbs, in which the witness was a certificated bankrupt, under the bankrupt law of Pennsylvania. In the case of Steele v. Phcenix Insurance Company., the ground of the decision was, that the Court were satisfied from the evidence that the plaintiff was free from interest. In the case now under consideraton, the witness was free from all real and substantial interest without a release, the operation of which, if one had been given, would merely have been to extinguish an appearance or a possibility of interest.
    If, however, the witness had an interest in the success of the plaintiffs, it was neutralized by an equal interest the other Way. If the plaintiffs recover, the money will be applied to the payment of his debts according to his assignment; and if they do not recover, it will be applied to the payment of his debt toithe defendant, on which, after passing to his credit all the property in controversy in this suit, there will still remain a large balance due.
    2. The letter of instructions was offered to prove that the defendant had a lien on the property of Francis Jacoby. It was of no more force than a verbal declaration, and was no part of, the res gestee between F. Jacoby and the defendant. If it had been admitted, it would have been in direct violation of the rule, that no man shall be permitted to make evidence for himself.
    In reply it was said, that the interest of Francis Jacoby was not balanced, let the verdict be as it might, because it was more for his interest to receive the surplus, if any, himself, than to have the property in controversy applied to the payment of Laussatt’s debt.
   Tilghman, C. J.,

after recapitulating the facts, delivered, the opinion of the Court, as follows :

The counsel for the defendant, who have moved for a new trial, make three objections to the charge of - the Court. 1. That the evidence was not sufficient to justify the jury in finding the defendant guilty of a wrongful conversion. 2d. That Ambrose Laussatt had a right to consign the goods to •the defendant, although no agreement to that purpose was made: and 3d. That the standard of damages ought to have been the price for which the goods were actually sold, and not the value at the time of the plaintiffs’ demand ; and moreover, that damages in the nature of interest ought not to have been given.

Whatever property F. Jacoby had in these goods passed to ihe plaintiffs by his deed of assignment, and if the perfect property passed, the right of possession passed with it. I am taking for granted, at present, that there was no agreement for the consignment of the goods to the defendant, and that without such an agreement, Ambrose Laussatt had no right to make the consignment. Then, as to a demand and refusal, they were both positively proved by the 951th of Mr. Delhi, and I consider the law as very, clear that, in general, a demand and refusal being proved, the jury ought to infer a conversion. There are, indeed, exceptions to this general rule, some of which appear in the cases which were cited on the part of the defendant. If one is in possession of goods which he has found and does not claim, and a demand being made by the owner, the possessor answers that he is not satisfied of that person’s being the owner, but he is ready to deliver the goods on receiving reasonable proof of ownership, this is not such a denial as will warrant the inference of conversion. On the contrary, it is such an answer as a prudent man, consulting the interest of the true owner, ought to give. So if one who calls himself the agent of the owner, demands the goods, and the possessor answers that he'cannot deliver them until he receives proof that he is really the agent, no conversion can be inferred, because the answer shews nothing like an intent to convert, but only a design to preserve the goods for the use of the owner. But, in the present case, the defendant refused to deliver the goods because he claimed them as his own, or, at least, he claimed a special property, adverse to the general property of the plaintiffs. It appears to me, that such a refusal falls within the general rule, and is sufficient evidence of a conversion.

2. In this case the oaths of Ambrose Laussatt and F. Jacoby were in direct opposition ; and if Ambrose Laussatt did not swear the truth, there must have been collusion between him and his uncle, the defendant, to throw the goods of F. Jacoby into the hands of the defendant in order to secure the debt due to him from Jacoby. Now, without entering into the abstract question, how far a consignee of goods has a right to consign .the proceeds to any other person than the owner, where he has received no express order on the subject, it is extremely clear that he cannot make a fraudulent consignment for the purpose of altering the property^ and that a party to such fraud shall not be permitted to take any benefit from it. Such a question cannot bear a moments consideration, and that is the very question presented in this case ; because, if the agreement set up by the defendant was really made, no doubt the consignment to him was legal, and so t|lt, jury were directed ; but if the agreement was not made, there was a fraud in the consignment, to which the defendant was a party. I am, therefore, of opinion that, on this point, the charge was right.

3. As to the damages—If the goods had been delivered on the plaintiffs’ demand, they might have sold them at the current price at that time ; that price, then, is the damage, and not the price which the goods brought some time after, when the market had fallen. As to further damages in the nature of interest, I see nothing unreasonable in them. The plaintiffs-were kept out of their property, and put to the expenses ' of a suit. On this point, our practice has been more liberal than that of the English Courts. Whether interest was included in the verdict, I am not certain ; but, granting that it was, I would not on that account set it aside. With respect* to the charge of the Court then, I am of opinion that the defendant’s objections cannot be sustained. But two other exceptions were taken at the trial, which arose on points of evidence. 1. The admission of F. Jacoby as a witness, was objected to by the defendant on the ground of his being interested. The trusts of his deed of assignment were, in the first place, to pay certain specified debts, and then to pay the debts of all creditors who should execute releases within a limited time ; the surplus, if any, to be returned to the assignor himself. Evidence was given which induced the Court to believe that there would be no surplus. Whether, on such evidence, the witness was admissible, it is unnecessary to determine ; because, granting that he had an interest in the surplus, that interest was balanced by a contrary interest, so that his interest was equal, whether the verdict was for plaintiffs or defendant. If the verdict should be for the plaintiffs, the fund in their hands would be increased, and, consequently, the surplus to come to the witness might be increased. On the contrary, if the verdict should be for the defendant, the money in his hands would be applied to the discharge of a debt for which the witness was responsible, for the defendant had no,t given him á release. His interest, therefore, was equal either way, and consequently he Was competent. 2. The defendant offered in evidence his letter of instructions to Ambrose Laussatt, when the ship Eagle, in which the defendant was a shipper, sailed from Philadelphia ; but the evidence was rejected by the Court. In this letter, the defendant, after giving instructions concerning the goods shipped by himself, speaks to his nephew as follows: u Do not forget that Mr. F. Jacoby has agreed that you should address me the returns of his adventure, giving them to me as a guarantee fof“the payment of the notes he is to give me for the amount of the coffee I sold him, which he has consigned to you.”

A better ^.expressed memorandum, to prove the point in issue between these parties, to be sure, could not have been penned. But was it evidence ? I cannot think that it was. It is true the plaintiffs had given in evidence, without objection, the letter of instructions from F. Jacoby to Ambrose Laussatt; but that was a very different matter. That letter proved the instructions given by F. Jacoby to his consignee, touching his own goods. And how else, could the instructions be proved ? It was written in the usual course of business, and formed the basis of the consignee’s power. It is necessary that such letters should be written, for without them the consignee would not know howto act. If any dispute had arisen concerning the power given by the defendant to his consignee, touching his own goods shipped in the Eagle, his letter would have been good evidence. But it was offered for no such purpose, but to prove that the defendant had a special property in the goods of another person. In that point of view, it is not a letter of instructions, but a paragraph "thrown into a letter of instructions to answer the writer’s purposes in a matter not concerning the goods shipped by him. If such evidence were admissible, it might have dangerous consequences. I know, that great latitude has been necessarily allowed in the admission of evidence in commercial causes ; but I think it has-~not, and ought not to be carried so far as was asked in this case, and, therefore, the evidence was properly rejected. On the whole, then, my opinion is against a new trial.

New trial refused,  