Rotan v. Fletcher — 15 Johns. 207

Majority

p. 207

Rotan against Fletcher.

Headnote

In an action or trover, the defendant may show that the propertyofthe goods was in a third person; or that the. sale under which the plaintiff claims was made without the authority of the or that it was made in fraud of l|le creditor, *> of the vcnd.tr.

IN ERROR, on certiorari to a justice’s court.

This was an action of trover brought by the defendant in error against the plaintiff in error, for taking a cow. The defendant in error, who was plaintiff in the court below, proved that the cow was delivered to him, as his property, by Mrs. Hemmway, the wife of Thomas Hemmway, to whom the cow belonged, and who had absconded, and that the

p. 208

plaintiff said, that for the, sake of securing an old debt, he would give Mrs. Hemmway 30 dollars for the cow: and that the cow was taken away by the plaintiff and put into the possession of one Stone, from whom she was taken away by the defendant below, and one Perkins, on an attachment against Hemmway. The defendant offered to prove that the cow was not the property of the plaintiff, but of Hemmway ; that the sale by his wife to the plaintiff was to cover the property from his creditors, and that the plaintiff was to return the cow to her. The justice refused to admit this testimony, and a verdict and judgment were rendered for the plaintiff below.

It appeared from the plaintiff’s own. showing, that the cow in question was taken by virtue of an attachment against Hemmway, and it is fairly to be inferred that the defendant in the court below was aiding and assisting the constable in the execution of the attachment: but independent of this, the evidence on the part of the plaintiff, should have been admitted; the action was trover, and it was competent for the defendant to prove property in a third person. The pretended sale from Mrs. Hemmway did not transfer the property to the plaintiff below. She had no authority to sell the cow ; and, besides, it was offered to be proved, that even this sale was fraudulent. The judgment must, accordingly, be reversed.

Judgment reversed.