i Bn-decíara-tions. —I. In tbe progress of tbe trial, tbe plaintiffs introduced Mrs. McMurray as a witness, by whom they proved that her husband bad directed and author-ized ^er to i'urD out g°°ds to plaintiffs in payment 0f tbeir debt; and that she did so. After tbe plaintiffs bad rested their case, the-defendant offered to prove by her witnesses that, two days after tbe alleged sale, McMurray returned borne and expressed himself dissatisfied with tbe sale; and also to prove what he bad said before be left about buying more goods and continuing tbeir business, and other statements of said McMurray. This evidence was objected to by plaintiffs, and the evidence was excluded by tbe court, and this ruling is assigned as error.
We are unable to see that there was any error in tbe action of tbe court. McMurray was still alive and within reach of tbe process of tbe court, and was a competent witness. Under such circumstances, bis declarations were but hearsay evidence, and, as such, clearly inadmissible.
s. ebuok prejudice, II. Tbe plaintiffs took the deposition of tbeir agent, who made tbe purchase of the goods from Mrs. McMurray, and in tbe deposition, in answer to an interrogatory in chief, the agent stated what Mrs. McMurray said about her authority at tbe time she delivered tbe key to tbe store and possession of tbe goods to him. Tbe defendant moved to suppress a certain portion of the deposition which professed to give tbe statements of Mrs. McMurray as to her authority to sell and deliver tbe goods. This motion was overruled and excepted to, and is now assigned as error.
In tbe answer to tbe last cross-interrogatory, the witness again answers, and sets out tbe same statements of Mrs. McMurray, made at tbe time she banded him tbe key to tbe *478store and delivered him tbe possession of the goods; and there is no motion to suppress this portion of the deposition. It is not necessary for us to decide that the statements were part of the res gestee, and necessarily competent as explaining the act which accompanied them; for, if the court had sustained the motion, the same evidence would still have been before the jury in the answer to the cross-interrogatory. If it was error, then, it was error without prejudice, and, hence, not available on appeal. And, further, Mrs. McMur-ray testified directly to the same facts before the jury.
s.-Rbavd: of grantfe. III. The defendant, after the court had instructed the jury at length upon the whole case, asked the court to give this instruction: “If the jury believe, from the evidence, that J. H. McMurray, one of the members of the firm of J. & J. H. McMurray, permitted Mrs. McMurray, or J. H. Smith, or both of them, to sell the whole stock of goods of said firm to the plaintiffs, with a view and for the purpose of hindering and delaying their other creditors, then, as to them, the sale is fraudulent and void.” This instruction was refused by the court, for the reason, as stated by the court, “ that no issue of fraud is made in the pleadings.” The refusal to give this instruction is now assigned as error.
It is claimed that, since all technical’forms of pleading, are abolished, and since such sale as is mentioned in the instruction is within the criminal statutes of this State, a party may avail himself of such defense without pleading it. However this may be, it is not necessary for us now to decide, since the instruction, as asked, is not the law in any case. ■ The purpose to hinder or delay must be known to the grantee before it can be made fraudulent and void as to him.
4_ saie. IY. After the verdict of the jury was rendered, ’the defendant moved for a new trial, on the ground, inter alia, that the same was contrary to the evidence; which motion was overruled, and duly excepted to. We *479have examined tbe evidence with some considerable care, and in onr judgment it fully sustains tbe finding of the jury. Any other finding would have been against the evidence. The plaintiffs were creditors of the McMurrays, of equal legal and equitable right and standing with the attaching creditors, represented by the defendant; and in their race to secure their respective claims, the plaintiffs, possibly by reason of the partiality of the debtors to them, secured a legal advantage by their purchase and possession of the goods in payment of their debt. This advantage cannot and ought not to be defeated by the subsequent attachment of the same goods by less fortunate or more tardy creditors. Their equities being equal/the prior legal right should prevail. The judgment is
Affirmed.