The objection to the declaration is, that there is no sufficient allegation of property in the plaintiff, upon which judgment can be rendered in his favor; that it is not the case of a title defectively stated, and which is cured by the verdict, but one in which no title is set forth. The ground of this objection is, that there can be no property in a dead person, and that here the allegation is of the taking and driving away of a “ cow of the plaintiff’s intestate.”
It is certainly necessary, in actions of trespass and trover for the wrongful taking or conversion of goods, as a common rule of pleading, to aver possession in the plaintiff when the cause of action arose. But when the plaintiff sues in another .right than his own, he may state the nature of his interest. As in trover by an administrator, he may aver that the intestate, in his life time, being possessed of divers goods, &c., casually lost the same, and then aver a conversion during his life time, or after his decease, according to the fact. 2 Chit. PI. (6th Amer. ed.) 838-842. And so, in the present case, the averment, though informal, will be presumed, upon a reasonable construction, to be of a taking and carrying away in the life time of the intestate, as the property is alleged to be in her, and not in the plaintiff; which averment is sustained by the evidence as reported.
But in expressing our opinion of the sufficiency of the declaration as to the averment of interest, we do not mean to decide as to the proper form of action, nor to rule that an action of trespass, on the facts as stated, can be maintained by the administrator. See Smith v. Milles, 1 T. R. 480. Wilson v. Knubley, 7 East, 135.
It was also objected that Franklin, who was called as a witness and admitted to testify, was not a competent witness, on the ground that he was one of the heirs of the intestate, and had not been duly released. The release which was before the court below is not now produced, it having been mislaid We therefore cannot express an opinion as to its *85sufficiency. But we do not doubt that á release may be so drawn by an hen, that he may be admitted as a witness in a suit in which an administrator of the ancestor, acting in behalf of his estate, is a party.
As to the sufficiency of the discharge of the witness, under the bankrupt law, as taking away his interest, it is not necessary to express an opinion, as the point has not been pressed by the counsel for the plaintiff.
In the progress of the cause, tjie defendant offered to prove that the cow had been twice mortgaged to him by Franklin, to secure two notes, and that he relied upon the proof of the mortgages and upon other evidence to be produced, to show that the plaintiff had no title to the property in question. This evidence was excluded by the court, unless the defendant could show that the mortgages were made with the knowledge or consent of the intestate. But we think the judge erred in this ruling.
The witness had been owner of the property, and the plaintiff relied on a title in his intestate, derived from the witness. But the defendant also claimed under the witness, and was also a creditor of his; and we think it was competent for him to offer the notes and mortgages in evidence, to establish the fact that he was a creditor of the assignor, and had a right to impeach the title of the plaintiff’s intestate, as fraudulent against creditors; and that the admissibility of the evidence does not depend on the fact of the intestate’s knowledge of the defendant’s mortgage. It is admissible to prove that the defendant was a creditor of the vendor ; and proving that, the defendant may go on further to prove, if in his power, that thé plaintiff’s title was fraudulent against creditors. It is said that he did not offer the mortgages to show that he was a creditor, and that he ought to have alleged his purpose more distinctly, to entitle him now to press this exception. But the notes and mortgage were offered to disprove the fact that the plaintiff’s intestate was the bond fide holder of the property ; and to enable him to do this, he had, we think, a right *86to introduce the mortgages as one link in the chain of evidence to establish his defence.
As to the question whether trover would not have been the proper form of action, and then, that trover could not be maintained without proof of a previous demand on the defendant, we observe that the objection to the form of action does not appear to have been taken in the court below. It was incidentally raised in the argument of the defendant’s counsel in this court, and was not discussed by the counsel for the plaintiff. Without, therefore, deciding as to the proper form of action, it is sufficient to say, that the plaintiff can, if he sees fit, move for leave to change the form of action, on the further hearing of the case. [See 1 Cush. 536.]
New trial granted.