#### FRANKLIN G. PITT *&*AL *vs.*BURTON G. ALBRITTON.

Where a "bailment is made by one of two tenants in common, and the bailee undertakes to hold for him and subject to his order alone, the bailee is not estopped as to the other tenant in common, but, in an action by the two , jointly against him, may show "that the true title is in a third person.

Appeal from the Superior Cofirt of Law of Pitt County, at the Spring Term, 1851, his Honor Judge Ellis presiding.

*75The plaintiffs declared in trover on a bailment to the de--fendant for the value of two slaves, Edmund and Luke.. On the trial it was proved, that one of the plaintiffs, Franklin Pitt, in the month of June, 1850, brought to the defendant, who was sheriff of Pitt county, the two slaves, and requested him to keep them in the common jail, until he should call for them himself or by his order. The defendant received them on those terms. In the month of August following, the said Franklin Pitt came and demanded the slaves of the defendant, and the defendant stated, that he-had delivered them to a Mr. Petway, who had claimed the-right to possess them.

The plaintiffs then offered in evidence, a deed in trust, executed by one Lewis Belcher to the plaintiffs in April, 1850, conveying to them in trust the said slaves. The plaintiffs further proved that the said slaves had been in the possession of Lewis Belcher before the making- of the said ¿feed. In the-course of the cross-examination of the witnesses offered by the plaintiffs, the defendant made enquiry into the title of the- slaves, tending to show that it was in one-[Robert Belcher.. The plaintiffs objected to-this evidence on the ground, that the defendant being their bailee, he could-not deny their title; and the objection was sustained. The plaintiffs then offered evidence of the value of the slaves,, and closed their case. The defendant objected, that the plaintiffs had not entitled themselves to a- verdict,, because only one of the- plaintiffs had bailed the slaves, and only one could sustain the action simply by showing a bailment, without title by him to the defendant; and that, as the other plaintiff, in order to entitle himself to a verdict, was ob-. liged to show title, the defendant was at liberty also to meet the-question of title and show a different and superior one. But the Court was of opinion with the plaintiff. Thereupon the defendant proposed to show that the slaves were, at the time of delivery to him and the surrender by him, the property of the- said Petway : that the said Petway, as she*76riff of Edgecombe county, had, under an execution issuing on a judgment, obtained at May Court, 1849, of that county, levied on the said slavesin .lime following,and returned his levy without sale to August, 1849: that a *venditioni exponas*issued from August, 1849, to November, 1849, commanding him to sell the said slaves; and another from May, 1850, commanding him likewise to sell the said slaves; and that the slaves having been withdrawn from Edgecombe the said Petway claimed them while in custody of the defendant by virtue of bis levy aforesaid, and the defendant had surrendered them to him. The plaintiffs excepted to this evidence, and the Court rejected it as irrelevant to any matter of defence to the action. Thereupon the defendant offered to show that in 1849, one Robert Belcher was the owner of the said slaves, and had executed to the said Pet-way a deed in trust, duly proved and registered, conveying them to him for the purpose of paying his debts: that in December of that year, the .slaves had been sold, and by virtue of an agreement made before the sale between them, the said Lewis Belcher bid them off as the joint property of himself, the said Petway, and one Sugg: that after the sale the slaves went into the possession of the said Lewis Belch-er, and so continued until (and for sometime afterwards) the said Lewis Belcher executed his deed in trust, which the plaintiffs had read: that during the whole time the slaves were in the possession of the said Lewis Belcher, before the execution of the deed to the plaintiff, he claimed to hold the slaves as tenant in common with the said Sugg and Petway, and, at the time of executing the said deed, he stated to the plaintiffs his interest to be such and no more, and that the deed was made and accepted upon such information to the plaintiffs. And the defendant averred, that the said Petway claimed the right to possess said slaves as one of the tenants in common with the said Lewis Belcher or his assignee, and had received them on this claim of right; and to this end, as a complete defence, as well as for the pur*77pose of determining the damages, if the plaintiffs were entitled to recover at all, the defendant declared this purpose in offering it. Bnt the Court declined to receive the evidence for any purpose. And the jury, tinder the instructions of the Court, rendered a verdict for the fall value of the slaves. Whereupon the defendant obtained a rule on the plaintiffs to show cause why a new trial should not be granted.

1st. Because the plaintiffs on the proof were not entitled to maintain the action jointly. .

2nd. Because of the rejection ol proper testimony offered by the defendants.

Rule discharged. Judgment for plaintiffs. Appeal to the Supreme Court.

Rodman, for the plaintiff.

*B. F. Moore*and *Biggs*for the defendant.

Peatlson, J.

The title of the slaves vested in Lewis Belcher, Petway and Sugg, as tenants in common. *Pitt*v *Petway,*at this term. After the delivery to Lewis Belcher, he conveyed all of “his interest” to the plaintiffs in trust, and afterwards one of the plaintiffs, Franklin Pitt, delivered the two slaves, now sued for, to the defendant, the jailor of Pitt county, to be kept for the said Franklin until he called for them. The defendant afterwards delivered them to one Petway, one of the tenants in common ; so that when called on for them by Pitt, he was not able to deliver them, and this action is brought by the two Pitts, to whom they were conveyed by Lewis Belcher.

On the trial the plaintiffs proved the bailment by Franklin Pitt to the defendant, and his failure to deliver the slaves on demand. They then read in evidence the deed from Lewis Belcher to them, and proved the value of the slaves, and rested the case. The defendant' offered to show, that Petway was a tenant in common with the plaintiffs, and *78that, on demand, he had delivered the slaves to him. His Honor rejected this evidence, being of opinion, that the defendant was bound as bailee, and could not be heard to deny the title of the plaintiffs. There is error.

If Franklin Pitt had sued on the contract of bailment, it may be, that the defendant would have been bound by it, and estopped from showing the facts ; for, although a bailee may excuse himself by proving that he delivered the article .on-Remand to the true owner, this is on the ground that he cbuld have been eBte'iyd1 by the true owner to deliver the article,.and it was not worth while to stand a suit. But when a bailment is made by a tenant in common and the-bailee undertakes to hold for him and subject to his order-alone, the bailee cannot excuse himself by showing a delivery to the other tenant in common ; for he could not have-compelled him to do so by action, and there was, consequently, no necessity for it.

In this case the action is trover by the two Pitts, and although the case states, they declared in trover “ on a bailment,’1 that can make no difference ; for the gist of the action is, that the defendant, being in posession of the property, converted it wrongfully. To sustain the action in the-name of the two, it was necessary to depart from the spe--cial bailment, and rely on the title to show, that by implication of law, the bailment was made by the *ovmers.*This opened the whole title; and the same implication which let in Bennet Pitt, (and which was necessary to sustain the action in the name of the two,) also let in Sugg and Pet-way, as part owners and parties to the contract of bailment, and so the defendant delivered the property to one of the-parties to the contract; which is a defence available under-the general issue, because it is a performance of the terms, of the bailment.

*79The idea, that there ought to have been a plea in abate* ment for non-joinder, has no bearing.

Per Curiam. Judgment reversed, and a *venire de novo.*