Majority
p. 453Joseph Cleaver v. Thomas M. Ogle, Sheriff.
Headnote
A mere possibility that a witness may gain or lose by the result of the suit, will not affect his competency.A sale of corn in the ear in the seller’s barn, afterwards to be got off ready for market by him, and to be taken away by the purchaser as soon as he could get ready to receive it, transfers the property to the purchaser from the time of the sale, and it cannot be taken on an execution against the seller levied before the delivery.
Replevin for a thousand bushels of Indian corn. Defendant pleaded property in Andrew Biddle, and that he levied on it by virtue of a fi. fa. in his hands against him. The corn had been grown by Biddle and was in his barn at the time of the levy by the sheriff; he had before that, however, sold it to the plaintiff, to be taken away by him in a short time. It was then in the ear, but had afterwards been beaten off by Biddle, prior to the sheriff’s levy. After the sale and before the levy, he had given orders in favor of a third person on the plaintiff for the price of the corn, which he had accepted, and was also in debt to him on account. The plaintiff was to send his vessel and take it
p. 454
away in a few days, or as soon as he could get his vessel there.
The defendant then called a witness, who was objected -to on the other side, upon the ground that he was surety for Biddle in another judgment against him, which bound his land, and as he was in embarrassed circumstances, the witness had an interest to have the corn applied to the payment of the present judgment, execution, and levy, which was a younger judgment than the other, and the probability was that the land would not sell for enough to. satisfy both judgments, and the witness might therefore, without this application, have something to pay on the latter judgment in which he was surety.
But the Court overruled the objection, because the interest of the witness on that ground, whatever it might turn out in the sequel to be, was too remote and contingent in its nature to exclude his testimony.
The defendant then proved by him, that he had inquired of the plaintiff if he had bought the corn before the levy, and he replied that he had agreed to take it at sixty cents per bushel, but after going- out to look at it, he found it rather damp, and that he was then to take it and freight it to Philadelphia, and whatever it brought over that price, he was to account for to Mr. Biddle.
The Court,
charged the jury: That it was incumbent upon the plaintiff to prove that the corn was his, and that it had been unlawfully taken or detained from him as his property by the defendant, and the only question to be determined in the case was, whether there had been an actual and bona fide sale of it by Biddle to him before the levy of the sheriff". In every sale of personal property, the law required that a valuable consideration should be paid or secured, or promised to be paid for it, and that it should be delivered into the possession of the purchaser as soon as it conveniently could be done after the sale. It was not necessary, however, that the property should be actually paid for at the time of the purchase;
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nor was it necessary that the actual delivery of it should he immediate and accompany the sale of it. In a sale of property to be delivered thereafter, it was sufficient, if it was delivered within the time mentioned; if no time be mentioned, and an. immediate delivery was inconvenient or impracticable, as where corn is sold in the ear and is afterwards to be got off and ready for market by the seller, or is to be delivered as soon as the purchaser shall be prepared to receive or ship it, it was sufficient, and would transfer the property in the thing sold from the vendor to the purchaser. But in such a case, the sale should be an actual and positive sale, and such as would transfer the right of property from the former to the latter in good faith, or it would be invalid.
Booth, for plaintiff.
Gordon, for defendant.
The plaintiff had a verdict.