#### Johnson v. Patterson.

From Wilkes.

V. iji'jv v.itnesse:- are called io prove declarations atóele by a witness, •XeeSiSlint with what he deposes on the trió ; it is perfectly regular in reply to shew other declarations made by the same witness in !iiiir>)>ance of wi'.M. he Las now uworn, and that he is still consistent *;>i>.h himself.

This was an action of Trover, brought to recover da-for lite conversion of a horse. On the tria! below, the Plaintiff prated by one Dailey, that it was agreed between tl>3 Plaintiff and witness, who was on a journey to Tennessee, that a temporary exchange of horses should he made between them | that the witness should leave his horse with Plaintiff, and ride that of Plaintiff to Tennessee and back again «and if'on his return both were satisfied, to mafic a prrAaaeíit exchange,, witness was to pay to Plainíüf ¿¿25 a:; the difference of value between the horres, and if either were dissatisfied, witness aas to pay PhtiuiilffílO for the u.'.o of his horse. The witness proceeded on his ¿©'trney with the horse, which is the ibiindaiion of Use present action, and in Tennessee was overtaken by the Defendant, w ho had pursued lsim from this Si ate. The Defendant was agent for the. firm of VVangh & sfinlcy, and when bo overtook witness charged hifi-i with having removed from Ncrth-Ca-rolina a person indebted to the firm of which he was agent. 'Witness then> on condition that Defendant would permit him to go unmolested, and in satisfaction of the claim which Defendant set up agai.net him, surrendered the horse in controversy, to the Defendant. The defence relied on was, that the exchange of horses between Plaintiff and Dailey was complete, aad Plaintiff had no title. To prove this, two witnesses, Austin am? Me.lseifiy, were introduced by Defendant, who swore, that in conversation will» Dailey and Plaintiff, both whfti? *184they were apart and also in Use presence of each other,stated that an exchange had taken place between them, but said nothing of any conditions. The Plaintiff £¡|U)J ca]j0{| a witness, Foster, who proved that he he.-u-fi X3 lain tí if tell Sai ley a few days before he started for Tennessee, an’d after the exchange, to take good care of tiie horse, and not dispose of him before his return. Tiie evidence of this witness wa3 objected to by Defendant, but received by the Court. Tiie Court left it to the .fury to collect from the evidence, whether tiie exchange between Bailey and the Plaintiff was permanent, or made only for a special purpose. The Jury found a verdict for the Plaintiff. A rule for a new tidal was obtained and afterwards discharged by the Court, and judgment for the Plaintiff. Defendant appealed to this Court.

Taylor, Chief-Justice.

The question in controversy between these parties, was, whether tiie horse belonged to the Plaintiff, or to the witness Thomas Bailey, under whom the Defendant claims ", and this depended on the fact, whether the Plaintiff and Bailey liad made an absolute or conditional sale. For the purpose of proving tli at the contract was of tiie latter description, Bailey was called on as a witness for the Plaintiff. To destroy-the effect of his testimohy, Austin and McNeilly are introduced on the other side, .who testify to declarations made by Bailey, tending to shew that the exchange was absolute, which declarations, if believed, go to impair the credibility of Bailey.’ It is, therefore, perfectly regular for tiie Plaintiff in reply to this evidence, to' shew other declarations made by the witness in affirmance of what he bar, now sworn, and that lie is still consistent with himself — (Gilb. Ev. 135.) ■ It is admissible in another point, of view : the Defendant claims under Bailey, and what lie said concerning the title, while he was in possession, is evidence against the Defendant — (3 Murph. Rep. 150.)

*185 Hall, Judge.

This caso seems to have beea fairly left to the Jury, under the charge.of the Court — evidence was offered on both sides, and the ,] ury were the proper judges of it | and I cannot see any objection to the vor-dic¡ they have found.

jJut if has been objected that the testimony of Austin ought not to have been received, when he related a conversation between himself and the Plaintiff, and also a conversation which had taken place at another time between himself and the witness Bailey. It must he kept in view, that at the time when both those conversations took place, the title to the horse was either in the Plain tiff or in the witness Ssailey, and that it was subsequent to that iisoe. that any claim was set up to the horse by the Defendant. Under these circumstances, it was as proper that those conversations should he given in evidence, an any contract made at that timo by the Plaintiff rand that witness. Evidence of those conversations may not he ¡so strong to fix the title of í ho horse, as a contract 'eiule by the parties, but it is evidence tending to the r/.me end.

i therefore think the rale for a new trial should be discharged.

ItuifPKiJfiosr, Judge, concurred.