delivered the opinion of the Court.
The questions arising in this case are, —
1. Has the plaintiff made out a title to the three hundred hides, for the specific delivery of which he asks a decree ?
2. If he has not, has he proved such a contract for the sale and delivery of those hides as constitutes a lien upon them in the hands of Dougherty, who was a purchaser pendente lite ?
3. If the plaintiff has made out such a title, or proved such a contract, can the Court decree a specific delivery of the hides ?
1. The bill avers that the plaintiff purchased three hundred hides in the vats, but does not aver that he paid for them. It only avers that John McPherson & Son “ had received a full and valuable consideration for them ; in other words, had been fairly paid for them.” It does not aver that any consideration moved from the plaintiff.
The defendant, Daniel McPherson, denies (in direct repugnance to the allegation of the bill) that he, or any of the firm of John McPherson & Son, ever received any compensation for the three hundred hides ; and avers that the bill of sale (or more properly the bill of parcels) was given to the plaintiff merely to indemnify him against the debt for which he was bound to Silas Wood & Co.; which debt he avers has been satisfied out of his own property.
This statement of the defendant, so far as it denies the allegation of the bill as to consideration, is evidence conclusive, unless contradicted by two witnesses. The plaintiff has produced none. It is true that Thomas Janney proves that he has a judgment against the plaintiff, as surety for the defendant, John McPherson & Son, for $1,280.25, with interest from the 10th of September, 1816, and that the plaintiff had paid $598.69 in part, and was liable for the balance. But there is no evidence to connect the sale of the hides with that transaction. If the plaintiff had possession of the hides, a court of equity would not, perhaps, compel him to give them up to the defendants, until they should indemnify him against that judgment; but the plaintiff’s liability alone, without possession, and without a specific contract connecting the hides with that liability, will not authorize a court of equity to take them out of the hands of a third person.
The allegation of the defendant that the bill of sale was given to indemnify the plaintiff against the claim of Silas Wood & Co. is corroborated by the fact that the marshal, with the consent of the plaintiff, levied that execution on those hides, and sold a part of them- to satisfy that claim; and the marshal’s deposition proves
There having been no consideration paid, by the plaintiff, for the hides, and. the purpose, for which the bill of parcels was given, having been answered, there does not appear to be any such title made out by the plaintiff, nor any such contract proved as will authorize a court of equity to decree a specific delivery of the hides, nor any other relief. It is, therefore, unnecessary to decide the two other questions.
We think the bill must be dismissed.
Bill dismissed, with costs.