Townsend against Kerns et al., 2 Watts 180

The Opinion of the Court was delivered by Sergeant, J. The first error assigned is, that (he court rejected a book of original entries, kept by Dungan, containing his receipts and expenditures on the farm during the year 1829, and purporting to be kept by him, as agent, of John Townsend. This book could have no bearing on the case, except to confirm the evidence before given, that Dungan was Townsend’s agent, and not his tenant. But Dungan was present in court, and examined as a witness, and the entries of acts done by him in the character of agent were not as good evidence as his testimony on oath.

If the transactions they relate to were evidence at all, the witness could only use the entries as a memorandum to refresh his memory. The cases cited, in which entries have been received as evidence, do not apply. They are cases where the entries were made by a person deceased, having no interest in the matter in question, or against his interest,, and in the usual course of business, and were received as evidence against the alleged principal, or in suits between third persons/to establish the fact stated in the entry.

Here they were offered by the principal to show the character of the alleged agent, he being alive and present as a witness. This evidence was therefore properly rejected. . The second and third errors assigned are, that the court rejected certain receipts for money paid by Dungan in 1829, on account of work done, and tax paid for the farm, after the plaintiff had proved the signature of the receiver. It is sufficient to say, on this point, that no evidence having been given that the persons signing the receipts could not be produced, they were not the best evidence.

This point has been before decided by this court. Cutbush v. Gilbert, 4 Serg. & Rawle 556. The remaining exceptions are to the charge of the court, and though varied in form are all, but the ninth, in substance the same—that the court did not charge the jury correctly on the law applicable to trespass, or charged them in a manner calculated to mislead.

The material question embraced in this cause probably is, whether Dungan held the articles as tenant of the plaintiff, or his agént; in the former case they were Dungan’s, and liable to seizure and sale on execution against him; in the latter case, they belonged to Townsend, and were not liable. But until the alleged judgment and execution of Kerns against Dungan were shown, the plaintiff’s title could not be questioned by the defendants.

And though some of the plaintiff’s witnesses speak of Leech’s levying as constable, yet the defendants did not produce the judgment and execution on the trial—for what reason does not appear. In this position of the cause, it was very material for the plaintiff to have the principle of the law, relative to actions of trespass, distinctly stated to the jury; namely, that the mere possession of Townsend, by his agent, was sufficient, without showing a title. Trespass is" emphatically an action founded on possession.

Possession has by law a qualified property annexed to it, which is valid until a better right be shown. Even trover may, by virtue of such property, be maintained by the finder of a chattel against a wrong doer. Indeed, without this principle in the law, the peace of society would be disturbed by conflicts amongst persons having no right, which should gain possession. But the judge seems to have instructed the jury, that it was necessary for the plaintiff, as the cause, stood, to establish title as well as possession.

For he says, “ that if the property in this case was not in the plaintiff at the time of the seizure, it is not necessary for the defendants to show any title or right to seize.” And “ that if the property was the plaintiff’s,.«¡red he had a legal or constructive possession of it, he may recover.” And again, “ the question is, was the property John Townsend’s at 'the time of the seizure, and was he in the actual or constructive possession of it.” The exception to the charge on this head seems therefore well sustained. The ninth error is not supported.

There can be no doubt that the defendants could impeach the plaintiff’s judgment and execution against Dungan, collaterally, in this suit,'by averring those proceedings to be fraudulent and collusive, provided they had first shown-a right in themselves which would in that case prevail. This point has been frequently decided, and indeed it is only collaterally that a stranger to the proceedings can impeach them; for being neither party nor privy he cannot do so by plea, writ of error or otherwise.

Third persons may always show fraud and collusion in acts by which their rights are to be affected: and the reason is, that whatever form or appearance such acts may exhibit, yet if fraudulently procured or effected, they are not what they assume to be, and have no legal existence or operation as to third persons. The parties lo the fraud are bound because they are not to be heard to aver it. Memo aliegans mam turpitudenem audiendus est. Judgment reversed, and venire facias de novo awarded.