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Hubble v. Osborn.

favor of the plaintiff to the extent of his just demand, unless the fraudu

lent intent is disproved by the evidence before you." Held, that the instruction was correct. SAME.— Evidence.-Admissions.—The admissions and declarations of the per

son paying the purchase money, made after the conveyance to the other

person, are not admissible in evidence against the latter. PRACTICE.—Motion for New Trial.-Filing of Affidavits.-Motion for a new

trial on the ground of misconduct of the jury. Affidavits in support, though ready, the party making the motion refused to put on file or submit to the inspection of the opposing counsel before the motion was taken up for argument, though he was previously notified in open court that objection would be made to the reading of them unless they were so filed. The

court refused, therefore, to allow them to be read. Held, that in this there was no error.

APPEAL from the Greene Circuit Court.

FRAZER, J.- This was a suit to recover the possession of a tract of land. The plaintiff claimed title by virtue of a purchase at sheriff's sale upon an execution in her favor issued upon a judgment against Samuel Hubble, recovered in the Common Pleas Court of Greene county. At the time of the sheriff's sale, the legal title stood in the name of the appellant, Daniel Hubble, to whom it had been conveyed by one Dayhoff, who was previously seized in fee simple, and it was claimed that Samuel (who was also a defendant) had paid the purchase-money and, to defraud his creditors, particularly the plaintiff, to whom he was then largely indebted, procured the conveyance to be made to the appellant, Daniel. This point constituted the chief matter of controversy. There was a verdict and judgment for the plaintiff, a motion for a new trial having been overruled, and Daniel appeals. Every question presented for our consideration arises upon the error assigned, that the court below erred in overruling the motion for a new trial.

It was shown by evidence that Samuel Hubble negotiated the purchase of the land and paid the purchase-money, Daniel not being present, and that he directed that the conveyance be made to Daniel.

The theory of the defense was, that in making the purchase Samuel acted merely as the authorized agent of Dan.

Hubble v. Osborn.

iel, the sickness of whose wife prevented him from leaving home; and that though Samuel did, in fact, advance the purchase-money, it was done in pursuance of an agreement between him and Daniel by which he was to do so as a short loan to Daniel, to be repaid, and that the money was accordingly soon after repaid to him by Daniel. This agreement the defendant offered to prove by the testimony of both Samuel and Daniel, but the court rejected the evidence, as appears by a special bill of exceptions; and this was one of the causes assigned for a new trial. It appears, however, by a subsequent bill of exceptions containing the evidence, that Samuel did, nevertheless, testify to that effect, and that Daniel also testified to the same facts except only the fact of the loan of the purchase-money by Samuel to him. Reconciling the two bills of exceptions as far as can be, we must conclude that after rejecting the evidence at first, the court afterwards permitted all the facts to be proved by one of the witnesses, and some of them by the other.

The evidence was all material, and went to the very heart of the controversy. We can perceive no good reason for rejecting any part of it, and certainly none for confining the appellant to one witness in proving the fact of the loan. If that fact existed the appellant should have had the verdict. It was therefore important to him to establish it by the greatest possible weight of testimony. The court could not lawfully limit him to one witness upon the vital point. This error must reverse the judgment.

The court instructed the jury as follows: “If the jury believe from the evidence that the defendant Samuel Hubble was indebted to the plaintiff in a large sum at the date of the deed from Dayhoff to Daniel Hubble, and that said Samuel contracted for and paid for said land out of his own moneys and had the same conveyed by deed to Daniel, said conveyance is presumed fraudulent as against said (plaintiff') creditor, and a trust results in favor of such prior creditor to the extent of her just demand, unless the fraud. ulent intent is disproved by the evidence before you."

Stewart v. Hutchins.

It is claimed that this instruction was erroneous.

We are not of that opinion. The act concerning trusts and powers (1 G. & H. 651, secs. 6, 7) and the code (sec. 526) seem conclusively to support the instruction. Tevis v. Doe, 3 Ind. 129, is an instructive case upon the subject.

The admissions and declarations of Samuel made after the conveyance to Daniel were admitted as evidence against Daniel, notwithstanding the objections of the latter. This was improper. Assuming there was, at the time, evidence adduced sufficient to show, prima facie, a conspiracy between Samuel and Daniel to defraud the plaintiff, that would only bind each by such declarations of the other as constituted a part of the res gesta, and would not make subsequent statements of the nature of the transaction evidence against anybody but the person making them. 1 Greenl. Ev. $ 111.

One cause assigned for a new trial was misconduct of the jury. Affidavits in support, though ready, the appellant refused to put on file or submit to the inspection of the appellee's counsel before the motion was taken up for argument, though he was previously notified in open court that objection would be made to reading them unless they were previously filed. The court refused, therefore, to allow them to be read upon the hearing of the motion. We would not, under such circumstances, say that there was error in this.

Judgment reversed, with costs, and the cause remanded for a new trial.

S. Claypool, for appellant.
J. M. Hanna, for appellee.

STEWART v. HUTCHINS.

PLEADING.–Justice of the Peace. The strict rules of pleading are not appli

cable to proceedings before a justice of the pcace.

Stewart v. Hutchins.

7

SAME.- Warranty.-Demand of Judgment.--Suit before a justice of the peace

on a note for $125. Answer, waiving the statutory denial and averring, that the note was given in part payment for a mare sold by plaintiff to defendant; that at the time of the sale plaintiff represented and warranted the mare as sound, when, in truth, she was unsound to such an extent that she died in consequence thereof in a short time; that plaintiff well knew she was unsound, and, designing to cheat and defraud defendant, warranted her to be sound; that defendant, relying on the representations and warranty of plaintiff, purchased her of plaintiff, and, as part payment, gave the note in suit, and for no other consideration whatever; that, in addition to the note, defendant paid plaintiff $40 in money for the mare, and was at great expense in keeping and caring for her, whereby he was damaged $25;

and he claimed judgment for $75, and all other proper relief. Held, on motion by plaintiff for judgment notwithstanding a verdict for de

fendant, that the answer covered the note in suit and demanded judgment for $75 over and above the same. APPEAL from the Steuben Common Pleas.

GREGORY, J.-Suit, commenced before a justice of the peace, by the appellant against the appellee on a promisory note for $125.

The answer before the justice waived the statutory general denial, and set up, that the note was given for a part of the consideration of the purchase of a mare sold by the plaintiff to the defendant; that at the time of the sale the plaintiff represented and warranted the mare to be sound, when in truth she was unsound to such an extent that she died in consequence thereof in a short time; that the plaintiff well knew that the mare was unsound, and, designing to cheat and defraud the defendant, warranted her to be sound; that the defendant, relying on the representations and warranty of the plaintiff, purchased the mare of the plantiff, and, as part payment therefor, gave the note in suit, and for no other consideration whatever; that, in addition to the note, the defendant paid the plaintiff forty dollars in money for the mare, and was at great expense in keeping and caring for her, whereby he was damaged twenty-five dollars; and he claimed judgment of seventy-five dollars, and all other proper relief.

The defendant also claimed a set-off for the forty dollars paid on the mare.

Stewart v. Hutchins.

Trial by jury; finding for the defendant six dollars. The plaintiff moved for a new trial. Pending the motion, the plaintiff moved the court for judgment non obstante veredicto, which motion the court overruled, and afterwards overruled the motion for a new trial.

It is urged, that seventy-five dollars is the entire damage claimed for the breach of the warranty, and the note being for $125, the plaintiff was entitled to judgment on the pleadings for the difference.

The majority of this court think this would be too strict a construction of a pleading before a justice of the peace. The answer claims judgment for seventy-five dollars. The plain meaning of this is, that the defendant wanted a judgment for the forty dollars he had paid on the mare, aud twenty-five dollars for the expense of keeping and the trouble in taking care of her, over and above the note he had executed for the balance of the purchase-money. It is true, there is no direct averment that the mare was of no value, but there are equivalent averments. The mare was unsound, of which unsoundness she died in a short time; and she was a great expense to the defendant in keeping and caring for her. These averments are inconsistent with the idea that she was of value. The answer was to the whole action. The pleader evidently intended to cover the note in the answer. The strict rules of pleading are not applicable to proceedings before a justice of the peace.

The court committed no error in overruling the motions.
The judgment is affirmed, with costs.
D. E. Palmer, for appellant.
J. A. Woodhall and W. G. Croxton, for appellee.

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