
    *Heyl against Burling.
    A mate of a vessel having a right to a certain quantity out of a cargo, by way of privilege, cannot, after a sale of the whole cargo by the consignee, pick out any specific parts, and sell them. A right of privilege in a cargo does not give such an interest as will enable the purchaser of it to maintain trover, if the consignee has not assented to the selection of those parts which are taken in satisfaction; for, in trover, property and possession must be shown. A release, executed to a witness, after his having deposed, does not make him competent.
    Trover to recover the value of two logs of mahogany, part of a cargo consigned to one Isaac Roget. The cause was tried at the New-York sittings, in June, 1802, before Mr. Justice Radcliff, when a verdict was found for the defendant.
    Several exceptions having been taken at the trial, a case was made from whence it appeared that the plaintiff had adduced in his behalf, one Mackworth, who testified to the purchase of the logs by the plaintiff, for 100 dollars, from Bonsall, the mate of the vessel in which the cargo was shipped.
    Charles Smith, a further witness on the part of the plaintiff, stated that he was at the purchase, which took place on a Saturday. That the logs were pointed out, agreed for, and immediately marked by the plaintiff, in the presence of the captain of the vessel, before whom and the mate, the plaintiff, on the Monday following, took possesBion of them, and afterwards removed them to a saw yard. That he, the witness, took them from the yard, and left them for Heyl at Whitehall. That the captain, at the time of the removal of the logs, sent a person to see that they were those which had been sold, and had the proper marks. This person examined the logs and took their numbers. That on the logs being afterwards missed, he, the witness, went, in company with the plaintiff, to the defendant’s yard, where he saw them. That the plaintiff immediately claimed them as his, and demanded them of the defendant, .who refused to deliver them up. That Eoget, while the logs were on the wharf, consented to the plaintiff’s taking them away, and made no objections to the sale of the mate.
    The witness mentioned that when he was first examined, he had said that the plaintiff had agreed for the logs at the rate of one shilling and sixpence per foot, in explanation of which he stated, that, as the logs were not then measured, the price was subsequently changed by the plaintiff and mate into a gross sum of 100 dollars, in order to get rid of the trouble of admeasurement.
    The plaintiff here rested his case.
    The defendant called Jeremiah Marshall, a public measurer of timber, who stated *that he was em- [*15] ployed by Eoget to measure a cargo of mahogany consigned to him, as he the witness, understood from Eoget, the captain, and mate of the vessel; that, after the first day’s work was done, the mate pointed out a log of mahogany, part of the cargo, (and which had been measured, marked, and numbered Mo. 21,) as being one of three logs, which belonged to him; that the witness, on the next day, before they began to discharge any of the mahogany, requested the mate to mention when they came to the other logs which belonged to him, in order that they might be put into a different bill; upon which the mate said, that he did not own any three particular logs, but that he had a right to make choice of three ; that the witness might measure the whole together, as he had been directed, and that he, the mate, would settle with Eoget for the interest he had therein. In consequence of this, the account of the measurement of all the mahogany was kept in one bill, and delivered to Eoget, who paid for it.
    After Marshall had given his testimony, Smith said, that the logs bought by the plaintiff had, at the time of purchase, been measured, as he saw the measurer’s marks upon them.
    The defendant then offered Eoget, who was objected to by the plaintiff’s counsel, as incompetent; but on being released by the defendant, was admitted, the point of his ad missibility being saved.
    Eoget’s testimony was, that he never authorized the mate to sell any of the cargo. That the whole consignment was sold by him to the defendant, before the taking away of the logs. That he never gave any authority to the plaintiff to take away the mahogany, nor ever had any knowledge of the claim of the mate to any three particular logs, until after the defendant had purchased the whole cargo, and until after the plaintiff had taken from the cargo which lay all togather upon the wharf, the three logs he had purchased.
    The plaintiff’s counsel then offered to prove declarations and admissions of the captain, as well before as after the sale of the mahogany by the mate to the plaintiff, _ [*16] that such sale was by *his, the captain’s, knowledge and consent; insisting he stood in the relation of agent for the consignee; but the testimony was rejected. This point also, at the request of the plaintiff’s counsel, saved by the judge.
    The defendant then read a deposition of a clerk in the counting-house of Eoget, stating that he was on the wharf at the foot of Eector-street, when the plaintiff and several other persons were removing three logs of mahogany, Mo. 21, 50, and 52, which the witness forbade, informing them Eoget had sold the logs to the defendant; that the witness knew the whole cargo, comprising the three logs above mentioned, were consigned to Bogét, who had accounted for the same to the consignor; and that the whole were sold , to, and paid for by, the defendant.
    Against these facts, the plaintiff, to prove his interest in the logs, and Boget’s consent to the sale, offered a deposition made by the mate-, and duly taken. This was insisted upon as proper testimony, there being no evidence that the mate had warranted the logs to the plaintiff, as his property: but the judge deeming it inadmissible, unless the mate was released, the plaintiff produced a release. The witness to its execution being called upon to prove it, testified, that he. was present at the time the deposition was taken, and on his return to his office, being an attorney, and acting in behalf of the attorney for the plaintiff, fearful lest an objection might be taken to the interest of the witness, he drew ' a release, and the same was executed by the plaintiff, and delivered to the mate in his office, who left it with the witness, for the purpose of being used on the trial. That this was done in the course of half an hour after the deposition was taken; and before the plaintiff, witness and mate had separated, after they had left the place of examination. That the defendant’s attorney cross-examined the mate, and such cross-examination was .in writing, at the end of the mate’s testimony, as proven on the part of the plaintiff; and a consent was subscribed to such examination by the de fendant’s attorney, as follows:
    “We, the subscribers, attorneys for the plaintiff and de fendant respectively, do consent that the above deposition be *read in evidence upon the trial of this [*17] cause; saving and reserving the exceptions to the admissibility of the testimony.”
    Under these circumstances, the deposition was again offered, but rejected, reserving the point.
    The judge charged, that it was absolutely necessary the plaintiff should show an acquiescence on the part of Boget to the sale by the mate; and that the consent oí the captain, or Ms acts, and those of the mate, were not binding without such acquiescence.
    
      Woods,
    
    for the plaintiff, now moved to set aside the verdict for misdirection, as well as for the rejection of proper testimony, and for a new trial.
    A release to Bonsall, the mate and vendor of the plaintiff, was, he argued, totally unnecessary; the court ought not to have asked it, as he was competent, being equally liable,  howsoever the cause was determined; first, to Boget, the consignee, and also to the plaintiff, as purchaser." Peake’s Law of Ev. 113. And peculiarly so, as Bonsall had sold without any warranty; and, therefore, had never asserted any interest in himself. Peake, 118. “If a vendor of an estate covenant for the title, or warrant the premises, he cannot be a witness to support the title of the vendee, in an action against him, by a third person, for the premises. 2 Roll. Abr. 685, pi. 1. But a vendor, who does not covenant for the title, or enter into any warranty, is a good witness. Busby v. Greenslate, 1 Stra. 445.” But if the court should be of opinion a release was necessary, such a release was given and offered. The circumstance of its being after the examination, is immaterial, from the peculiar facts stated in the case. If Boget, the consignee, was competent, being released by the defendant, Bonsall, the vendor, was as much so, on a release from the plaintiff. Besides, the declarations and admissions of the captain were full evidence for the plaintiff. He was the agent of the consignor; and, as in that capacity he consented to the sale t'a the plaintiff, it bound Boget, and confirmed the sale by Bonsall; the ^rejecting, therefore, these declarations and ad- [*18] missions, was contrary to law. From the facts, it appears the plaintiff had peaceable possession under a good title; and, at all events, his possession alone was enough to prevent the defendant from taking the logs out of that possession; for it was as much continued while the logs lay at Whitehall, as if in the plaintiff’s yard; having been left there by him.
    
      Boyd,
    
    for the defendant. There is not an equal liability in Bonsall. He is not liable to the defendant; for there is no privity between them. The defendant purchased of Boget, and Boget is liable to him, not the mate; for he is liable only to the purchaser, the plaintiff; and, therefore, liable to only one of the parties in the cause. Therefore, admitting the principle of equal liability,.it does not apply; as to the release being given after the deposition offered, the testimony was properly rejected. The reason why a release is necessary, is to do away the effect of the influence of interest; but, if it be given after the testimony, the interest has already had its effect. The declarations and admissions of the captain could not be received; for he is not the agent of the consignee, and his agency for the consignor terminates on delivery; which had here taken place, and a sale been made to the defendant. He denied, therefore, the possession of the plaintiff; as it had been transferred, by the consignee, to Burling; and as to the warranty, in sales of chattels, it was not necessary.
    
      Woods, in reply, insisted on his first positions.
    
      
      
        Milward v. Hallett, 2 Caines, 77, S. P.
    
    
      
      
         It is supposed Evans v. Williams is the case alluded to, (7 D. & E. 481, n. c.)
    
    
      
       The old cases make a distinction between sales of chattels in possession and out of possession. That in the first instance, an express warranty is not necessary; in the second, it is. Medina v. Stoughton, 1 Salk. 210. But this has been denied to be law. Pasley v. Freeman, 3 D. & E. 57, 58. See 1 Lex. Mer. Am. 372.
    
    
      
      
         The reason of these determinations is, that, with respect to purchases )f lands, the maxim of “caveat emptor” applies; in those of chattel interests, it does not. Money had and received will not lie to recover back the consideration paid for an assignment of a mortgage, which turns out to be a forgery, if bona fide transferred, and the assignor has not covenanted for the goodness of the title. Bree v. Holbech, Doug. 655. But see 2 Ch. Cas 19, and Hardinge v. Nelthorpe, Nels. Ch. Rep. 118.
    
    
      
       The principle is, that the liability must be immediate to the parties in the suit, and not a remote, circuitous liability. Ball v Bostwick, 1 Stra. 575.
    
   Radcliff, ,J.

I understood the mate’s claim to be fouud* ed on his office, as a privilege annexed.

Per Curiam.

The facts of this case arise merely from the depositions of witnesses. Thom these it appears that the plaintiff purchased of one Bonsall, the mate of a vessel, three logs of mahogany; that, at this time, the captain and consignee were present, as is stated by the witnesses of the plaintiff. On the case, as presented to us, there is some degree of contradiction in the testimony, which, as it was laid before the jury, they, no doubt, duly estimated. In this action, property and possession must be shown., The only evidence of this property and possession is from the testimony of Mackworth and Smith. They state, that the price contracted for, between Bonsall and the plaintiff, was one hundred dollars; and Smith, ás a reason for a [*19] gross sum being ^agreed upon, adds, “ that it was to save the trouble of having the mahogany measured.” Marshall, the'public measurer, deposes, that he did measure the whole cargo, and that the mate sold them, after whey were so measured. That, at the mate’s request, the «marge of measuring was debited to Eoget, the consignee, who paid for it; and that the mate himself acknowledged ¿e did not own any three particular logs, but that he had A right to make choice of three, and would settle for it with Eoget. After this testimony is delivered, Smith recollects that the mahogany had been measured, and that he saw the measurer’s marks bn the logs; though, before that, he assigns its non-measurement as a specific reason for a gross price of one hundred dollars being agreed as the purchase-money. After this, a release being produced from Burling, the defendant, Eoget, the consignee, was admitted very properly as a witness, and he is followed by his clerk. Under these circumstances, it must be taken for granted that the jury weighed Smith’s credibility; and if so, there could be no doubt that there was neither property nor possession in the plaintiff. It is urged as a reason for a new trial, that the judge’s charge precluded certain testimony; or, at least, prevented the jury from weighing it; for, the judge charged that it was necessary to show an acquiescence in Eoget. But it must be presumed to have been understood by the jury, that Eoget’s acquiescence was' necessary for Heyl to show property in himself; and, on this point, we think that the mate, Bonsall, must have shown property, as the consignment was to Eoget entirely.. The testimony of Smith was wry properly disregarded, and the verdict ought to stand. The release of Bonsall, being after his examination, and when the interest he had must have had its full influence and operation on his testimony, came too late, and could not be received.

New trial refused. 
      
      
         To maintain the action of trover, there must be a right of possession and a right of property. The right to the possession must be immediate, (Gordon v. Harper, 2 Esp. Rep. 465,) that is, the plaintiff must be entitled to the possession of the goods at the time of the action brought; but, it is not necessary that actual possession should ever have been enjoyed;, a possession in law is sufficient. Hudson v. Hudson, Latch, 214. Flewellin v. Rave, 1 Bulst. 68. The right of property may be absolute, Pyne v. Dor, 1 D. & E. 55 ; Blaker v. Anscombe, 1 N. R. 25,) or special, as that of a bailee, (Arnold v. Jefferson, 1 Ld. Raym. 275,) or a carrier, (Goodwin v. Richardson, I Roll. Abr. 4,) or a sheriff, (Wilbraham v. Snow, 2 Saund. 47,) but the right of property and possession must unite in the plaintiff. Gordon v. Harper, ub. sup. See also Webb v. Fox, 7 D. & B. 391. In addition to these requisites in the plaintiff, the subject matter of the suit must be a personalty. Eiwes v. Shaw, 3 East, 51. Quaere, whether, in regard to the subject, Todd V. Crookshanks, 3 Johns. Rep. 432, be reconcilable with Goggerley v. Cuthbert, . N. R. 170. Observe, that possession alone gives a right of property against wrongdoers, and all the world except the ^ght owner. Armory v. Delamirie, 1 Stra. 505. Webb v. Fox, ub. sup.
      
     
      
       See also McDonald v. Hewett, 15 J. R. 349.
     
      
      
         A release to render a witness competent must destroy, in regard to the object of controversy, his liability to both parties, and that, as well in equity as at law. Cheyne v. Koops, 4 Esp. Rep. 112. See Heermance v. Venoy. 6 Johns. Rep. 5, as to competence of vendors.
     