By the Court,
Savage Ch. J.
The first point made by the defendant on which he relies for a new trial is, that the judge ought to have nonsuited the plaintiff on the ground that by the contract he had no lien on the brick. This point has been already considered and decided by this court, and may therefore be considered at rest. This cause was tried in February, 1827 ; the judge nonsuited the plaintiff, which non-suit was set aside by this court on the ground that by the contract between the plaintiff’ and Green, the plaintiff was entitled to retain possession of the brick until he parted with it by delivering them on board the vessels. We then said that such was the agreement, and that neither Green nor any one under him had authority to prescribe a different course without the plaintiff’s consent, and that consequently the plaintiff’s right to the possession continued until he was compensated for his services at the rate specified in the contract, or until he delivered the brick on board the vessels. We also held that the defendant standing in the place of Green, had no greater authority than Green himself.
On further reflection and examination, I am 'satisfied that that decision was correct Each of. the parties by the contract was to contribute towards making the brick, but they were not partners. Green furnished the materials, the clay- and the wood ; Moore made the brick, and until he delivered them on board the vessel, Green had no legal right to the-possession; after their delivery to Green, Moore had no. [296]*296further claim upon them, hut upon Green or his assignee. Suppose Green, after the brick were moulded but not burnt, had destroyed them, would he not have been a trespasser ? or had he put out the fires when burning, or taken the brick after burnt and destroyed them ? By the contract he had no right to intermeddle with the brick until they were delivered to him on board the vessels, unless indeed the plaintiff had refused to deliver them according to the contract.
Upon general principles also I think the judge was correct in saying, that an artisan has a lien upon the article made by him till he is paid for his labor. If a man send cloth to a tailor, or leather to a shoemaker, for the purpose of having clothes- or shoes made, the mechanic may retain the manufactured article till he is paid for his labor. No good reason can be shewn why a brick maker, who receives the materials in the manner in which the plaintiff did, should not be protected by the same principle. By the contract in question he seems to have agreed to waive his lien as against Green, and was not to receive his pay till the vessel which carried the brick to market should return. This was a personal credit to Green, founded on the confidence reposed in him; but had Green, assigned his contract to a pauper, or to a man notoriously insolvent, or whose bad character justified the presumption that he would never pay the plaintiff, would he under that contract have been bound to deliver the brick when there was no prospect of being remunerated ? I think not. But it is unnecessary to discuss the question of his liability on his contract; he has never violated it; he was not called on to perform it. The defendant seems to have acted under the impression, that by the sheriff’s sale he had the whole title to the brick. In this he was certainly mistaken.
The question next in order is the competency of the witness Hurd. He was a plaintiff in the judgment, by virtue of which the property in question was sold. He did not agree to indemnify the sheriff, but his co-plaintiff did, and he felt himself bound in honor to contribute to the indemnity of the sheriff. The reason why a person interested is incompetent is a supposed want of integrity ; that his interest creates a [297]*297bias on his mind which will induce him to testify incorrectly to benefit himself. To ascertain whether a witness is interested, this court, in Van Ness v. Terhune, (3 Johns. Cas. 82, 3,) adopted the rule that “ If a witness will not gain or lose by the event of the cause, or if the verdict cannot be given in evidence for or against him in another suit, the objection goes to his credit only, and not to his competency.” A variety of subsequent cases say that there must be a fixed legal interest to render a witness incompetent. A witness, however, may feel an interest where there is in truth no legal interest. In such cases there has been a contrariety of opinions upon the question whether he ought to be sworn. If he thinks himself interested, it has been said, there is the same reason to suspect bias on the part of the witness as if his interest was real. This court has established a rule for such cases in The Trustees of Lansingburgh v. Willard, (8 Johns. R. 428.) They there said, “ To prevent fraud and trick, the following appears to be a salutary distinction: If a witness be called, and declares himself interested on the side of the party who Calls him, and his interest be so circumstanced that he cannot be released by the party calling him, in such case he ought not to be sworn, though in strictness he is not interested ; but if his ideal interest be against the party calling him, and he will run the risk of the bias on the mind of the witness, then he ought to be sworn.” But where a witness has in fact no legal fixed interest in the event, and does not think himself legally interested, but feels himself obligated in honour to share in the loss, if any, in such case it has been decided, in Gilpin v. Vincent, (9 Johns. R. 220,) that he is competent and ought to be sworn. The witness had no fixed interest in the event of this suit. He was called to support the regularity of the sheriff’s sale. If that was irregular, the sheriff was a trespasser, and may be made liable as such. The sheriff has his remedy against Buckman, and the witness thought himself bound—bound in honor, but not legally—to share the loss with Buckman. He was, therefore within the rules [298]*298above cited, a competent witness, and should have been sworn.
The only remaining question respects the extent of the plaintiff’s interest. The defendant attempted to shew that tpe piaintifF had been compensated for his lien or interest in the brick by Green ; much testimony was introduced on that subject, and it appeared by the testimony of Green, that when Moore left off work, he examined his,'(Green’s) account against him, and admitted the items and charges to be correct; it amounted to $265,40. It also appeared that subsequent charges had been made in Green’s book by Buckman with Green’s consent, which made the account $582,57. The two important items which swell this account are demands, one in favor of Buckman and the other in favor of Livingston, Hurd & Co. When the plaintiff went to work on the brick-yard in Castleton he was poor and wanted credit at the stores of the persons above named ; they refused the credit unless Green, who was then in good credit, would become responsible; Green agreed verbally to be responsible, to pay for the goods if Moore did not. The goods were charged to Moore who never paid for them. Green obtained the benefit of the insolvent act in November, 1826, and subsequently the goods were charged to him; and then they were charged in his account against the plaintiff. Green had not paid these accounts, and the plaintiff still remains liable for them.
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By the Court,
Savage Ch. J.
The first point made by the defendant on which he relies for a new trial is, that the judge ought to have nonsuited the plaintiff on the ground that by the contract he had no lien on the brick. This point has been already considered and decided by this court, and may therefore be considered at rest. This cause was tried in February, 1827 ; the judge nonsuited the plaintiff, which non-suit was set aside by this court on the ground that by the contract between the plaintiff’ and Green, the plaintiff was entitled to retain possession of the brick until he parted with it by delivering them on board the vessels. We then said that such was the agreement, and that neither Green nor any one under him had authority to prescribe a different course without the plaintiff’s consent, and that consequently the plaintiff’s right to the possession continued until he was compensated for his services at the rate specified in the contract, or until he delivered the brick on board the vessels. We also held that the defendant standing in the place of Green, had no greater authority than Green himself.
On further reflection and examination, I am 'satisfied that that decision was correct Each of. the parties by the contract was to contribute towards making the brick, but they were not partners. Green furnished the materials, the clay- and the wood ; Moore made the brick, and until he delivered them on board the vessel, Green had no legal right to the-possession; after their delivery to Green, Moore had no. [296]*296further claim upon them, hut upon Green or his assignee. Suppose Green, after the brick were moulded but not burnt, had destroyed them, would he not have been a trespasser ? or had he put out the fires when burning, or taken the brick after burnt and destroyed them ? By the contract he had no right to intermeddle with the brick until they were delivered to him on board the vessels, unless indeed the plaintiff had refused to deliver them according to the contract.
Upon general principles also I think the judge was correct in saying, that an artisan has a lien upon the article made by him till he is paid for his labor. If a man send cloth to a tailor, or leather to a shoemaker, for the purpose of having clothes- or shoes made, the mechanic may retain the manufactured article till he is paid for his labor. No good reason can be shewn why a brick maker, who receives the materials in the manner in which the plaintiff did, should not be protected by the same principle. By the contract in question he seems to have agreed to waive his lien as against Green, and was not to receive his pay till the vessel which carried the brick to market should return. This was a personal credit to Green, founded on the confidence reposed in him; but had Green, assigned his contract to a pauper, or to a man notoriously insolvent, or whose bad character justified the presumption that he would never pay the plaintiff, would he under that contract have been bound to deliver the brick when there was no prospect of being remunerated ? I think not. But it is unnecessary to discuss the question of his liability on his contract; he has never violated it; he was not called on to perform it. The defendant seems to have acted under the impression, that by the sheriff’s sale he had the whole title to the brick. In this he was certainly mistaken.
The question next in order is the competency of the witness Hurd. He was a plaintiff in the judgment, by virtue of which the property in question was sold. He did not agree to indemnify the sheriff, but his co-plaintiff did, and he felt himself bound in honor to contribute to the indemnity of the sheriff. The reason why a person interested is incompetent is a supposed want of integrity ; that his interest creates a [297]*297bias on his mind which will induce him to testify incorrectly to benefit himself. To ascertain whether a witness is interested, this court, in Van Ness v. Terhune, (3 Johns. Cas. 82, 3,) adopted the rule that “ If a witness will not gain or lose by the event of the cause, or if the verdict cannot be given in evidence for or against him in another suit, the objection goes to his credit only, and not to his competency.” A variety of subsequent cases say that there must be a fixed legal interest to render a witness incompetent. A witness, however, may feel an interest where there is in truth no legal interest. In such cases there has been a contrariety of opinions upon the question whether he ought to be sworn. If he thinks himself interested, it has been said, there is the same reason to suspect bias on the part of the witness as if his interest was real. This court has established a rule for such cases in The Trustees of Lansingburgh v. Willard, (8 Johns. R. 428.) They there said, “ To prevent fraud and trick, the following appears to be a salutary distinction: If a witness be called, and declares himself interested on the side of the party who Calls him, and his interest be so circumstanced that he cannot be released by the party calling him, in such case he ought not to be sworn, though in strictness he is not interested ; but if his ideal interest be against the party calling him, and he will run the risk of the bias on the mind of the witness, then he ought to be sworn.” But where a witness has in fact no legal fixed interest in the event, and does not think himself legally interested, but feels himself obligated in honour to share in the loss, if any, in such case it has been decided, in Gilpin v. Vincent, (9 Johns. R. 220,) that he is competent and ought to be sworn. The witness had no fixed interest in the event of this suit. He was called to support the regularity of the sheriff’s sale. If that was irregular, the sheriff was a trespasser, and may be made liable as such. The sheriff has his remedy against Buckman, and the witness thought himself bound—bound in honor, but not legally—to share the loss with Buckman. He was, therefore within the rules [298]*298above cited, a competent witness, and should have been sworn.
The only remaining question respects the extent of the plaintiff’s interest. The defendant attempted to shew that tpe piaintifF had been compensated for his lien or interest in the brick by Green ; much testimony was introduced on that subject, and it appeared by the testimony of Green, that when Moore left off work, he examined his,'(Green’s) account against him, and admitted the items and charges to be correct; it amounted to $265,40. It also appeared that subsequent charges had been made in Green’s book by Buckman with Green’s consent, which made the account $582,57. The two important items which swell this account are demands, one in favor of Buckman and the other in favor of Livingston, Hurd & Co. When the plaintiff went to work on the brick-yard in Castleton he was poor and wanted credit at the stores of the persons above named ; they refused the credit unless Green, who was then in good credit, would become responsible; Green agreed verbally to be responsible, to pay for the goods if Moore did not. The goods were charged to Moore who never paid for them. Green obtained the benefit of the insolvent act in November, 1826, and subsequently the goods were charged to him; and then they were charged in his account against the plaintiff. Green had not paid these accounts, and the plaintiff still remains liable for them. It was proved that the plaintiff had given his note to Buckman for $143,67, which he had agreed should be considered as a payment to him by Green; and he had also admitted to the defendant in the presence of his clerk, that the other account for goods to Livingston, Hurd & Co. of $85, of which firm the defendant was a partner, should be considered as a payment by Green. It appears that the plaintiff admitted what the defendant wished him to admit, and one of his admissions was part of a conversation about the settlement of this suit. And in all instances a witness was cautioned beforehand, to observe and recollect what was admitted. It happens, however, that his admissions against himself were not correct. He was mistaken in the first place as to his rights under the written contract, sup[299]*299posing that he had no lien upon the brick, and he was mistaken also in supposing that a charge on a merchant’s books against Green operated as payment by Green to him to that amount. One of these merchants took his note, which «... Green never saw till after the commencement ot this suit. At that time the plaintiff was liable upon it to Buckman; and to Livingston, Hurd & Co. he was then and is still liable ; and it does not appear that when Green was charged with Moore’s debts, that Moore had a corresponding credit. There is no question as to Green’s liability for the articles delivered Moore; but Green’s right to charge them is denied until he shall have paid for them, or shall have discharged Moore’s liability; then he might charge for them or for the money paid. The judge charged the jury that the defendant was entitled to any fair account of Green against the plaintiff, but that the notes delivered by Buckman to Green could not be considered a payment to Moore, as they had been delivered to Green after the commencement of this suit and had never been paid by him; that the account of Livingston & Co. had never been paid by Green, and that the plaintiff’s admissions were not satisfactory. This charge was certainly correct.
It seems the jury have considered the whole account between the plaintiff and Green, and have given their verdict against Hitchcock for the balance due by Green. This cannot be right. It is true that the defendant stands in the place of Green as to the title of the property purchased at sheriff’s sale; and the evidence would have been altogether inadmissible, as to the state of the accounts between the plaintiff and Green in any other point of view, only to extinguish the plaintiff’s lien upon the property purchased by the defendant. I have before endeavoured to shew that by the terms of the contract, the plaintiff lost his lien upon the brick when he delivered them on board the vessels, and that afterwards he had no security but Green’s responsibility. If I succeeded in that, then the extent of the defendant’s liability is the amount of the plaintiff’s lien upon the property which he removed.
[300]*300Dutcher, one of the witnesses, says that the brick sold by qle sheriff consisted of 13 or 14 arches of ten or eleven thousand each. Green says there were but nine arches when sold. A medium, therefore, will be eleven arches; and it appears that many of the brick were damaged, so that ten thousand to an arch will be a fair estimate. The defendant, therefore, in the absence of positive proof, ought not to be charged with the purchase of more than one hundred and twenty thousand bricks, on which the plaintiff’s claim is $210; the interest on that sum up to May term, 1830, is $52,67, amounting to $262,67, which is all the plaintiff is legally entitled to recover. In trover, where the plaintiff does not recover the whole value of the property converted, the propriety of going into the original accounts has been doubted, (5 Bin. 457,) but in a case like this it seems to me indispensable. Under such circumstances, however, the above case shews that the amount of the recovery should be only the extent of the interest of the plaintiff in the property. The defendant in this case owns the whole property in the brick in question except what interest the plaintiff has. It is surely proper, therefore, that the plaintiff should recover against the defendant only the amount of his interest in the property which the defendant claims, not the amount of his interest in property which the defendant does not claim, but which had been delivered to Green upon the contract, upon Green’s sole responsibility.
I am of opinion, therefore, that a new trial be granted.