This must be considered as an action against Hodges alone; for, although Higgins is mentioned as a defendant, in the complaint, he did not plead, and it does not appear that he was served with the summons. The plaintiff's case was that Higgins, in form, purchased the horses of him, on the 11th of June, 1855, but that on account of fraud on Higgins' part, the sale was void, and that the title did not pass, and that the horses were subsequently found in the defendant's possession; but that he did not acquire the possession under such circumstances as would enable him to claim a better title than Higgins had. The jury, by their general verdict against the defendant, must be understood as having pronounced in favor *Page 488 of the plaintiff. The only questions which can now be made, arise upon the exceptions taken to rulings respecting the admissibility of evidence, and to exceptions to the charge of the judge.
The sale by Higgins to the defendant was on the 17th of July, 1855. It would appear, though the statement to that effect is not explicit, that the plaintiff proposed to give in evidence statements of Higgins, made after his sale to the defendant, in regard to the sale; for the case states that the defendant objected to such declarations and that the court overruled such objections, and the defendant's counsel excepted. The witness then under examination, Johnson, testified that Higgins said that Hodges was "one of the damnedest little rascals he ever saw." This was not testimony relating to the sale of the horses from Higgins to the defendant, but it related solely, so far as it appears, to the personal demerits of the defendant. It does not appear to have been responsive to any question put to the witness who gave the testimony, and it was not within the scope of the ruling which was excepted to. That ruling was apparently incorrect; for I can not conceive that the declarations of Higgins respecting the sale to the defendant, made after that sale had taken place, could have been competent against the defendant; but not having been admitted by the ruling or received in consequence of it, it was not an error of the judge for which the verdict ought to be interfered with. The defendant, if he had thought proper, might have called upon the judge to withdraw the answer from the consideration of the jury, and if he had refused, an exception to the ruling might have been sustained. The method taken by the plaintiff to establish the fraud of Higgins in purchasing the horses, will appear by the following statement: On the 1st of May, 1855, Higgins purchased of the plaintiff a lease of certain premises used as a coal yard, a quantity of fossil coal, and utensils which the plaintiff had used in the business of a vendor of coal. The object of Higgins was declared *Page 489 by him to be to conduct, at that place, the business of purchasing and selling coal upon an extensive scale. The horses in question were purchased on credit by Higgins, of the plaintiff, on the 11th of June following, to be used in the same business, and Higgins absconded on the 8th of August following, having in the intermediate time (on the 17th of July) sold the coal yard, the coal purchased of the plaintiff, and these horses, and a large quantity of coal and other property, purchased by him on credit of other persons, the sale in the aggregate amounting to some $15,000. The plaintiff's theory was, that the design of Higgins throughout was, not the bona fide establishment of a regular business as a coal dealer, but on the pretense of such a business enterprise, to get into his hands a large amount of coal and other property under color of purchases on credit, and then to dispose of it for cash and abscond. The facts proved without objection tended to establish this theory, and the evidence which was admitted against the defendant's objection, was the subject of two other of the exceptions. That evidence tended to show other purchases of property by Higgins, of other parties under similar circumstances, and that he left the price unpaid when he ran away. I think the evidence was entirely competent.
The remaining exceptions were those taken to portions of the charge. The plaintiff took two notes for the purchase price of the horses, payable at a bank, and which would mature on the 14th and 17th of September, 1855. Higgins absconded as has been mentioned, on the 8th day of the preceding August. Instead of seizing or replevying the horses immediately after Higgins went away, and after the fraud was thus in part disclosed, the plaintiff placed the notes in the hands of a bank to await their maturity, but they were not paid. This is called, in the case, protesting them, but there was no indorser to be charged, the notes being to the order of the plaintiff. The judge charged that this retaining of the notes by the plaintiff and causing them to be *Page 490 protested for payment, and what was further done, which is called protesting them and giving notice of non-payment, but which could not have been any thing more than giving notice to the plaintiff that the notes had not been taken up, was not in itself sufficient evidence of an affirmance of the sale to Higgins. It should be observed that the plaintiff had been given to understand by the defendant that there was a probability of his being paid out of the proceeds of the sale made by Higgins to the defendant. He was not a party to the agreement which had been made between Higgins and the defendant, and might well enough have supposed that the large amount of property which was thus disposed of might, in some way, have been used for the payment of his debts incurred in its purchase, including the debt of the plaintiff represented by the notes. I am of opinion that the evidence of fraud in the purchase of the horses by Higgins had not culminated, until it was shown by the dishonor of the notes, that there was no intention of applying the property which went into the defendants hands, or its proceeds, to the payment of the debt which arose out of its purchase. If this be so, the charge of the judge, that the treatment by the plaintiff of the notes did not show a ratification of the sale, was correct. The contract to return the notes to Higgins appears to have been impracticable, for he had absconded, so that they could not be given to him. It was sufficient therefore to produce them on the trial.
I am in favor of affirming the judgment appealed from.