NEW-YORK, Heyl V. Burling. A mate of a veffel having a right to a certain quantity out Christian Heyl against Samuel Burling. TROVER, to recover the value of two logs of mahogany, tried at the New-York fittings in June 1802, before Mr. Juftice Radcliff. On a cafe referved, the following facts appeared: That the plaintiff bought of one Bonfall, mate of a veffel, a cargo, by three logs of mahogany, for one hundred dollars-that they way of privilege cannot, after a were laying on a wharf, and part of the confideration money fale of the whole paid. That Mr. Roget, herein after named, was prefent, and cargo by the confignee, pick a conversation paffed between him and the mate and the plainout any specific tiff; but what it was, was not known. parts, and fell them. A right cargo, does not tereft as will en to the felection in fatisfaction; Charles Smith, on part of the plaintiff, teftified, that he of privilege in a was prefent at the purchase. The logs were pointed out, and give fuch an in- agreed for in the presence of the captain of the vessel, and able the purchaimmediately marked by the plaintiff. This was on Saturfer of it to main- day. On Monday following, Heyl, in the presence of the tain trover, if the confignee captain and of the mate, took poffeffion of the logs, and rehas not affented moved them to a faw-yard, from whence they were taken, and of thofe parts afterwards left by witness, for Heyl, at White-Hall. That which are taken the captain, at the time of their removal, fent a person to fee for, in trover, that they were those which had been fold, and had the proproperty and per marks. This perfon examined and took the numbers of poffeffion must be fhewn. A re- the logs. Two of the logs being afterwards miffing, the witleafe, executed nefs went in company with Heyl, to the defendant's yard, to a witnefs, after his having where he faw the logs. Heyl claimed them as his, and dedepofed, does not make him manded of the defendant to deliver them to him; which the defendant refufed. That, during the time the logs were on the wharf, and before their removal, Roget, the perfon, to whom it afterwards appeared in teftimony, the whole cargo of mahogany was configned, gave confent to Heyl to take away the logs, and made no objection to the fale by the mate. The witnefs mentioned, that when he was first examined, he said the plaintiff had agreed to buy the logs of mahogany at the rate of one fhilling and fix pence per foot, but that it was afterwards agreed between the plaintiff and mate, that the plaintiff should pay the gross sum of one hundred dollars, and that the fubfequent agreement was in order to get rid of the trouble of having the mahogany measured; as the logs were not then measured. competent. May 1803. 15 Smith, after Jeremiah Marshall had given his teftimony, NEW-YORK, faid, that the logs purchased by the plaintiff had, at the time of the purchase, been measured; as he faw the measurer's marks upon them. Jeremiah Marthall, for the defendant, testified, that he is a public measurer of timber: that he was employed by Roget, to measure a cargo of mahogany configned to the faid Roget, as the witnefs understood from Roget-the captain and mate of the veffel: That, after the firft day's work was done, the mate of the veffel pointed out a log of mahogany, which came from on board the faid veffel, (and which had been measured, marked and numbered, as No. 21, of the faid cargo,) as being one of three logs, which belonged to him; that the witnefs, 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 fettle with Roget for the interest he had therein: in confequence, the account of the meafurement of the whole of the mahogany was kept in one bill, and delivered to Roget, who paid for the measuring. Ifaac Roget, the confignee, was then offered as a witness: he was objected to by the plaintiff's counsel, as incompetent; but the judge admitted him, on being released by the defendant. The point of his admiffibility was faved by plaintiff. Roget's teftimony was, that he never authorized the mate to fell any of the cargo; and that the whole confignment was fold 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: That he never had any knowledge of the claim of the mate to any three particular logs, until after the defendant had purchased the whole of the rest of the cargo, and until after the plaintiff had taken the three logs from the reft of the cargo, which lay all together on the wharf. The plaintiff's counfel offered to prove other declarations and admiffions of the captain, as well before as after the fale of mahogany by the mate to plaintiff, that fuch fale was by Heyl V. Burling. NEW-YORK, his, the captain's knowledge and confent; infifting he stood May 1803. in the relation of agent for the confignee; but the testimony' was rejected. This alfo was faved by the plaintiff's counsel. Heyl V. Burling. The defendant read a depofition of a clerk in the countinghoufe of Roget, ftating, that he was on the wharf at the foot of Rector-street, when the plaintiff and several other perfons were removing three logs of mahogany, No. 21, 50 and 52, which the witness forbade, informing them Roget had fold the logs to the defendant; that, witnefs knew the whole cargo comprising the three logs above mentioned, were configned to Roget, who has accounted for the fame to the confignor; and that the whole were fold to, and paid for by the defend ant: The plaintiff then offered to give in evidence a deposition, duly taken, made by the mate, to prove plaintiff's interest in the logs, and Roget's consent to the felling the logs in queftion to the plaintiff, and which was infifted upon as proper teftimony, there being no evidence of the mate having warrant ed the logs to the plaintiff, as his property: but the Judge was of opinion that fuch teftimony was inadmiffible, unless the mate was released by plaintiff; which opinion was faved by the plaintiff's counsel. The plaintiff then produced a release; and the witness to its execution being called upon to prove it, teftified, that he was prefent at the time the depofition was taken, and on his return to his office, being an attorney, and acting in behalf of the attorney for the plaintiff, fearful left an objection might be taken to the intereft of the witness, he drew a release, and the fame was executed by the plaintiff, and delivered to the mate in his office, who left it with witnefs, for the purpose of being ufed on the trial. That this was done in the course of half an hour after the depofition was taken; and before the plaintiff, witness and mate had separated, after they had left the place of examination. That the defendant's attorney crossexamined the mate, and fuch cross-examination was in writing, at the end of the mate's teftimony, as proven on part of the plaintiff; and a confent was fubfcribed to fuch examination by defendant's attorney, as follows: "We, the fubfcribers, attornies for the plaintiff and defendant refpectively, do consent, that the above deposition be read in evidence upon the trial of this caufe; faving and re- NEW-YORK, ferving the exceptions to the admiffibility of the testimony." Under thefe circumftances, the counfel for plaintiff moved, that the depofition ought to be read in evidence; but it was rejected. This point was alfo referved by plaintiff. The judge charged, that it was abfolutely neceffary* the plaintiff should shew an acquiefcence on the part of Roget, to the fale by the mate; and that the consent of the captain, or his acts, and that of the mate, were not binding without fuch acquiefcence. The jury found a verdict for defendant. May 1803, Heyl V. Burling. + It is fuppofed liams, is the cafe alluded to. 7 D. E. 481, n. (c.) Evans v. Wil & + The old cafes make a diftinction between fales of chattels in poffeffion and That in the firft out of poffeffion. inflance, an exis not neceffary; preis warranty in the fecond, it is. Medina v. this has been Freeman, 3 D. & E. 57, 58. See 1 Lex Mer. Am. 372. The reafon of these determi nations is, that The plaintiff now moved to fet aside the verdict for mifdirection in the judge, both in his charge, and rejection of proper teftimony; and for a new trial to be granted. Woods. A release to Bonfall, the mate and vender of the plaintiff was totally unneceffary: the court ought not to have asked it, as he was competent, being equally liable, howfoever Stoughton, I the cause was determined: firft, to Roget the confignee, and Salk. 372. But alfo to the plaintiff, as purchaser. Peake, Law of Evid. 113.† denied to be law. Pafley v. And peculiarly fo, as Bonfall had fold without any warranty; and therefore, had never afferted any intereft in himself. Peake 118. "If a vendor of an estate covenant for the title, or warrant the premises, he cannot be a witness to fupport "the title of the vendee, in an action against him by a third perfon for the premises. 2 Roll. Abr. 685. But a vendor, with refpect to "who does not covenant for the title, or enter into any war- lands, the maxpurchases of ranty, is a good witnefs. Bufby v. Greenflate, 1 Stra. im of "caveat emptor" applies: "445."§ But if the court fhould be of opinion a release was in thofe of chatneceffary, fuch a release was given and offered. The circum- tel interefts, it stance of its being after the examination, is immaterial, from ney had and received, will not the peculiar facts ftated in the cafe. If Roget, the confignee, lie to recov was competent, being releafed by the defendant, Bonfall, the back the confivendor, was as much fo, on a release from the plaintiff. Be- deration paid for an affignment of fides, the declarations and admiffions of the captain were full a mortgage, evidence for the plaintiff. He was the agent of the confignee; to be a forgery, and, as in that capacity he confented to the fale to the plain- if bona fide tiff, it bound Roget, and confirmed the fale by Bonfall: the the affignor has cr does not. Mo which turns out transferred, and not covenanted * His Honour's real charge was, as the reporter is from high authority informed, for the goodness by no means of the very pofitive kind ftated by the cafe; but qualified with rea- of the title. fonings on the nature of the action, the circumstances of the cafe, &c. and after Bree v. Hobftating the evidence given, and pointing out to the jury how the law was, accord- bech,Doug.655. ing as the teftimony fhould be believed, his Honour left to them to determine on its weight. D Heyl V. NEW-YORK, rejecting, therefore, thefe declarations and admiffions, was May 1803. contrary to law. From the facts it appears, the plaintiff had peaceable poffeffion under a good title; and at all events, his poffeffion alone was enough to prevent the defendant from taking the logs out of that poffeflion; for it was as much continued while the logs lay at White-Hall, as if in the plaintiff's yard; having been left there by him. Burling. But fee 2 Ch. Hardinge v. immediate, to the parties in the fuit, and not a remote, circutous liability. Bail v. Boft wick, I Stra. 575 Boyd for the defendant. * There is not an equal liability in Bonfall. He is not liable to the defendant; for there is no privity between them. The defendant purchased of Roget, The princi- and Roget is liable to him, not the mate; for he is liable ple is, that the liability must be only to the purchafer, the plaintiff; and therefore liable to to only one of the parties in the caufe. Therefore, admitting the principle of equal liability, (which he did) it did not apply; as to the release being given after the depofition offered, the teftimony was properly rejected. The reafon why a release is neceffary, is to do away the effect of the influence of intereft; but if it be given after the teftimony, the interest has already had its effect. The declarations and admiffions of the captain could not be received; for he is not the agent of the confignee, and his agency terminates on delivery; which had here taken place, and a fale been made to the defendant. He denied, therefore the poffeffion of the plaintiff; as it had been transferred by the confignee to Burling; and as to the warranty, in fales of chattels it was not neceffary. Radcliff J. I understood the mate's claim to be founded on his office, as a privilege annexed. Woods in reply, insisted on his first positions. Per curiam. The facts of this cafe arife merely from the depofitions of witneffes fubmitted to the court. From thefe it appears, that the plaintiff purchased of one Bonfall, the mate of a veffel, three logs of mahogany; that at this time, the captain and confignee were prefent, as is ftated by the witneffes of the plaintiff. On the cafe, as prefented to us, there is fome degree of contradiction in the teftimony, which, as it was laid before the jury, they, no doubt, duly estimated. this action, property and poffeflion must be fhewn. The only evidence of this property and poffeflion is from the teftimony of Mackworth and Smith. They ftate, that the price contracted for between Bonfall and the plaintiff, was one hundred dollars; and Smith, as a reason for a grofs fum being In |