Samuel A. Shurtleff versus Calvin Willard, 19 Pick. 202

Morton J. delivered the opinion of the Court. Several questions of law arise upon this report. But the labor of understanding the complicated statement of the case, rendered unusually obscure by the irregularity of the proceedings on the trial, and of ascertaining what legal questions are presented in it, has been greater than that of the decision of the questions themselves. It may throw some light upon the subject and make our judgment and reasoning more intelligible, to trace the history of the property in controversy, through its various mutations, from an undoubted source.

The goods were once, indisputably, the property of the firm composed of Noah Worcester, Horatio Carter and Oscar C. B. Carter. On the 1st of April, 1833, they dissolved the partnership, and Worcester and O. C. B. Carter assigned, by paroi, on the terms agreed on, their interest in the concern, and their part of the property, to H. Carter. On the 21st of April, 1833, H. Carter conveyed, by bill of sale, the same goods to Timothy H. Carter. In October 1833, T. H.

Car ter conveyed the goods to Worcester, by a bill of sale, which was antedated to the 1st of April ; and Worcester’s note for the consideration was also made to bear the same date. On the 5th of February, 1834, Worcester mortgaged the goods to T. H. Carter ; and on the 16th of March following the latter assigned the mortgage to the plaintiff. Under this mortgage the plaintiff now claims. The defendant justifies the seizure of the goods as the property of Worcester, by virtue of an execution against him.

The jury have satisfactorily decided all the questions of fact, and have negatived all actual or intentional fraud ; and we have only to deal with the matters of law which arose upon the trial and have been reserved. The delivery to Carter, Andrews & Co. was a sufficient delivery to H. Carter, to vest the whole property in him. He being a member of the firm and having directed the delivery to be made to them and requested them to receive it, duly authorized them to act for him. And the delivery to an agent is in law a delivery to the principal. But a part only was delivered.

This the jury have found was delivered for the whole. Was this, under the circumstances of the case, sufficient to perfect the sale and vest the property in the purchaser ? If, at the time of the sale, the purchaser has possession of the articles bought, no actaul delivery is necessary or can be made, And so idle a ceremony as a formal or symbolical delivery the law does not require. Chapman v. Searle, 3 Pick. 45; Macomber v. Parker, 13 Pick. 183. Chattels holden by co-partners or tenants in common, are in the possession of each as well as all. And either has the power to sell and deliver possession of the whole.

But when one sells to another, the delivery does not so much consist in the actual tradition of the chattels from the one to the other, as in the surrender and ielinquishment of the possession by the seller to the purchaser, thereby giving him the absolute and exclusive occupation and control of what before he held in common for himself and others. A delivery, therefore, between partners and tenants in common is rather a matter of form required to perfect the sale and complete the transfer, than any substantial part of the conveyance.

But nevertheless it is deemed to be an indispensable requisite in the transfer of personal property. Gow on Partn. 296, 314, 335; Collyer on Partn. 130; 1 Montagu on Partn. 101, and cases collected in note ; Ex parte Peake, 1 Madd. 346; Ex parte Harris, 1 Madd. 583; Ex parte Titner, 1 Atk. 136; Ex parte Ruffin, 6 Ves. 119; Ex parte Fell, 10 Ves. 347; Ex parte Williams, 11 Ves. 3; Ex parte Rowlandson, 2 Ves. & Bea. 172.

The company having been dissolved by mutual consent, and two of the partners having agreed to sell their portions of the goods to the third, the property vested in him, provided the sale was perfected by a legal delivery. A part only was delivered ; but this part, as the jury have found, was delivered for the whole. That a contract of sale of numerous and various chattels may be executed without an actual transmission of the whole into the occupation of the purchaser, is familiar and unquestioned law. This may be done by a mere symbolical delivery, or by a delivery of a part for the whole.

Long on Sales, (1st Amer. ed.) 148, 153; Slubey v. Heyward, 2 H. Bl. 504; Hammond v. Anderson, 4 Bos. & Pul. 69; Parks v. Hall, 2 Pick. 206. But the defendant’s counsel, while they admit the rule, deny its application to chattels scattered, as these were, in different and distant places. They contend that it is limited to the same parcel or mas? of goods, as the cargo of a vessel or the stock of goods in a particular store or place. But we know of no such limitation. It would nearly destroy the utility of the rule and essentially embarrass and obstruct constructive deliveries.

It would materially interfere with general assignments and extensive transfers of property. And in cases where the property was extensive and various it would be difficult, if not impracticable, to give effect to the conveyance by a proper delivery. The limitation which we find recognized, is to the contract of sale ; and the principle is, that a constructive delivery operates upon all the property contained in the agreement of the parties, and intended by them to be transferred. Neither the conveyance of H. Carter to T. H. Carter, nor of the latter to Worcester, can be questioned in this action.

These bills of sale are undoubtedly valid as, to the parties and strangers. Purchasers and creditors only could be allowed to controvert them. But the defendant’s counsel contend that the continuance of the possession of the mortgagor after the mortgage became absolute, with the use which be made of the property, was per se fraud or conclusive evidence of fraud.

Whatever the rule of law upon this point may be in England or elsewhere, it is perfectly well settled in this State, in a series of cases which have been cited, that the possession of the vendor, whether the sale be absolute or conditional, is only evidence of fraud ; which, with the manner of the occupation, the conduct of the parties, and all other evidence bearing'upon the question of fraud, is for the consideration of the jury. By the St. 1832, c. 157, the registration of a mortgage of personal property is substituted for delivery of possession.

And a mortgage duly executed and recorded, is effectual to pass the property described in it, without any other act or ceremony. Bullock v. Williams, 16 Pick. 33. And whether the mortgaged goods continue to be holden under the mortgage or become absolutely the property of the mortgagee, the possession of the mortgagor can at most be but evidence of fraud. It is further contended, that this mortgage is invalid, because the property described is, from its transitory and perishable nature, incapable of being holden in mortgage.

There' may be chattels so transient in their existence or of such a naturc, their only use consisting in their consumption, that they cánnot be mortgaged. Sommerville v. Horton, 4 Yerger, 543. But the property in question, being stock, farming tools, produce, &c. clearly is not of this description. But even if it were, the mortgage would not be invalid as to the residue. The competency of T. H. Carter is objected to by the defendant’s counsel. But the plaintiff’s counsel not only deny his incompetency, but contend that the objections came too late and cannot now be insisted upon.

There certainly was a good deal of irregularity in the management of the trial and the introduction of the evidence. But a less rigid adherence to matters of form is now observed than formerly, and a more liberal practice, which looks to the merits and justice of the case, rather than to technical rules and the order of proceeding, now prevails. Formerly objections to the competency of witnesses were allowed only upon the voir dire ; and after the witness was sworn in chief, it was too late to allege his incompetency.

It is now manifestly more proper to make the objection, before the examination in chief has shown whether the adverse party may wish to use or get rid of the testimony. But it nevertheless may be taken in any stage of the trial when discovered. 1 Stark. Ev. 121, 122, and cases cited. This is undoubtedly ■the rule when the disqualification is to be shown by the witness himself. It would, however, seem to be unreasonable, for a party possessing evidence of the incompetence, of a witness, to withhold it till he had learned whether his testimony would be beneficial or injurious to him.

And it may well be doubted whether, under such circumstances, it should be received. But there can be no doubt that when the evidence of the disqualification is .unknown to the party at the time of the examination in chief, he may introduce it in any stage of the trial when he discovers it. Indeed if the existence of it did not come to the knowledge of the party till after the trial, it would, if of sufficient importance, be a good ground for granting a new trial.

It is very obvious that a party objecting to the competency of a witness, after his examination, cannot have the full benefit of the exclusion of his testimony. It has been given to the jury and-cannot be obliterated from their memories. It may have made an impression of which they are unconscious, and which they may not be able to eradicate. All which the court can do to restore the party to his legal rights, is to instruct the jury to disregard the incompetent evidence and to decide the case, as if it had not been given.

We will not stop to inquire whether the relation of the witness to the plaintiff and to the transaction, rendered him incompetent or not. The testimony of Worcester and O. C. B. Carter clearly shows, that by the admissions of the plaintiff he was not only interested in the event of the suit but in fact the real party in it. Now it is not our province to inquire into the correctness of this testimony, but, in the decision of the question before us, we must regard it as true.

If the question of interest had rested solely upon this evidence, it should have been submitted to the jury and they should have been instructed to disregard the evidence of T. H. Carter, if they believed those witnesses. There can be no doubt that the confession of the party is the proper proof of the interest of the witness. The declarations of witnesses would be hearsay, and witnesses cannot disqualify themselves by admissions of their incompetency made in pais. Nor upon a question of his admissibility, can a witness be permitted to testify as to his own competency.

If proved to be interested, he cannot be sworn at all. We have examined the several releases and discharges executed by the plaintiff and by the witness, and we are of opinion they entirely purge the witness of his interest. If he was interested in favor of the plaintiff, his releases entirely discharge him. If he was-the real party in interest, his own release to his assignees would effectually transfer all his interest in the suit and forever estop him from claiming any of the fruits of the judgment. So that on the whole, we are satisfied with the admission of the testimony. Judgment on the verdict.