
    Jabez Rice versus Timothy W. Bancroft.
    In trespass for taking the plaintiff’s horse, the defendant relied on evidence that a debtor, in failing circumstances, fraudulently conveyed the horse to his son, and that the plaintiff, with knowledge of the fraud, received it of the son in exchange for another horse. The plaintiff, to rebut the evidence of such knowledge, called a witness, who testified that before the debtor was in failing circumstances, he heard him speak of exchanging horses with the plaintiff. It was held, that this evidence was admissible, as tending to prove the fact, that the debtor had talked of selling, and his son of buying, and the plaintiff of exchanging, before the failure
    It was held also, that although the debtor himself was a witness, yet that the fact above mentioned, being an independent fact, not introduced with a view to impeach or contradict the debtor’s testimony, might be proved by any competent witness, and that, without first inquiring of the debtor.
    The witness having further testified, without being interrogated thereto, that the debtor told him that the plaintiff proposed the exchange for the purpose of getting a steady horse to work, it was held, that although this was improper testimony, being hearsay, yet that, as it had not been objected to at the trial, the admission of it did not entitle the defendant to a new trial.
    Trespass for taking a horse.
    The cause was tried before Putnam J., and by his report it appeared that the defendant, being a deputy sheriff, took the horse as the property of Jonathan Peirce, upon an execution m favor of one Butman against Peirce. The horse once belonged to Peirce. He failed on the 29th of October 1829, and all his property except this horse was attached on three writs, one in favor of J. F. Clark, and the other two in favor of his sons Willard Peirce and John G. Peirce. The horse was sold by Jonathan to his son Willard on the 31st of October, for $75, and was paid for by a note for that amount, payable in a year. It was however proved by one Gates, that Willard told him on the 30th of October, that he had bought the horse. The bargain was made at the plaintiff’s house, and he witnessed the note. On the same day Willard and the plaintiff conversed about exchanging horses, but no bargain was completed between them until the 2d of Novemher, when an exchange took place and the plaintiff thereby obtained the horse in controversy.
    It was alleged by the defendant, that the sale from Jonathan to Willard was fraudulent, and that this was known to the plaintiff when he obtained the horse.
    The defendant proved by the testimony of Gates, that on the morning of the 29th of October, he (Gates) learned of the failure of one Willington; that he communicated this to Jonathan Peirce, who thereupon said he had signed notes with Willington at the bank, and he now expected they would come upon him, and if they did, he must do the best he could ; that Jonathan then took the horse and rode him away, and the horse was never brought back again ; that when Jonathan rode away the horse, he went to the house of one of his sons-in-law, three or four miles distant, where he found his son Willard, to whom he communicated the fact of his being in failing circumstances. Whereupon Willard procured the writs in favor of himself and of John G. Peirce to be sued out and served.
    Testimony was offered by the defendant, of declarations of Jonathan and Willard, tending to show a conspiracy between them to keep the horse from the creditors of Jonathan.
    The plaintiff then, in order to show his motives in procuring the horse, offered to prove, that prior to the failure of Jona than Peirce, viz. in August 1829, Jonathan in a conversation which he had with Gates, stated that he and Willard were desirous of obtaining the plaintiff’s horse to mate one w'hich Willard owned, and for this purpose wished to exchange with the plaintiff, and that the horse of the plaintiff would mate the one owned by Willard. The defendant objected to this evidence, but the objection was overruled, and Gates testified, that sometime in August 1829 he heard 'Jonathan speak of swapping with the plaintiff for his horse, which was very lively that Jonathan said the plaintiff proposed it for the purpose ot getting a steady horse to work.
    The jury were instructed, that there were two questions ior them to decide, first, whether the sale from Jonathan to Willard was fraudulent ; and second, whether this was known to the plaintiff at the time of exchanging his own horse fot the horse in controversy.
    
      
      Oct 13th.
    
    
      Oct. 12th.
    
    A verdict was found for the plaintiff, and the defendant, among other things, excepted to the admission of the declaration of Jonathan Peirce, as testified to by Gates.
    Merrick, for the defendant,
    cited 3 Stark. Ev. 1300; Flagg v. Dryden, 7 Pick. 52.
    
      Hoar and Washburn, for the plaintiff,
    cited Prince v. Shepard, 9 Pick. 183.
   Shaw C. J.

delivered the opinion of the Court. The only question ultimately submitted to the consideration of the Court was, that of the admissibility of the testimony offered by the plaintiff, which was objected to on the ground of hearsay. The case of the defendant, who had attached the horse as the property of Jonathan Peirce, depended upon showing that there had been a fraudulent sale by Jonathan Peirce to his son Willard Peirce, and that the plaintiff took the horse of Willard upon an exchange, with knowledge of the fraudulent sale under which he held the horse. It had also been shown on the part of the defendant, that Jonathan Peirce, on the 29th of October, expressed apprehension of his own failure, in consequence of the unexpected failure of a person for whom he was surety ; that immediately after this, and after some expressions indicative of an intent to place his property beyond the reach of his creditors, he conveyed the horse in question to his son Willard. This having been shown by the defendant, led strongly to the conclusion, that the idea of a sale of the horse by Jonathan to his son, to avoid an attachment, and defraud his creditors, was conceived after the failure of the person for whom he was surety, and that the fraudulent sale followed. It was a question of motive. In this state of tivngs it became material for the plaintiff to show, that there had been a negotiation or talk of this sale, between Jonathan and his son Willard, and the latter and Rice, prior to the 29th of October and before the debtor entertained any apprehensions of his own failure. And this evidence, though objected to, was held to be. admissible, and we think correctly. The object was to prove the fact, that Jonathan had talked of selling and Willard of buying and Rice of exchanging, before the failure. This, like any other fact, might be proved by any person who knew it, and could testify to it, and though Jonathan was a witness, and the fact might be testified to by him, yet it being an independent fact, not brought in with a view tc impeach or contradict the witness, could as well be proved by any other competent witness, and that without first inquiring of Jonathan. So far, therefore, as the evidence was admitted by the court it was admissible. But the witness went further, and having testified that, as early as August, he heard Jonathan Peirce speak of swapping his horse with Rice, which was conformable to the permission of the court, proceeded to testify to what Jonathan Peirce told him, that Rice the plaintiff said. This was undoubtedly wrong ; not because Rice was not at liberty to show what he himself had proposed and talked about in August, as part of the res gestee, but -because the evidence was hearsay, and the fact was not proved in the manner required by the rules of evidence. But this was the fault or mistake of the witness, as to his duty, and not in pursuance of any question asked by the plaintiff or allowed by the court. It cannot therefore be the ground of a new trial.

Had the defendant’s counsel at the time objected to this part of the answer and called upon the court to decide upon its competency, it would have been the duty of the court to mform the jury that it was not competent evidence, and that it was their duty to disregard it. But if no objection was made at the time, and no request made to the court for such opinion and instruction to the jury, it must be deemed to have been considered unimportant, and to have been waived. It often happens, either through ignorance or honest zeal, that witnesses go beyond their duty in stating what it is not competent and proper for them to state, before there is time or . opportunity either for the counsel or court to correct them In such case, the course is for the court to instruct the jury to disregard it. But if no notice is taken of it, and no such instruction asked for by the party whose interests might be injuriously affected by it, he ought not to lie by, and make it the subject of complaint and motion for a new trial, after a verdict against him.

Judgment on the verdict. 
      
       See Allen v. Duncan, ante, 308; Boyden v. Moore, ante, 362; Walton v. Green, 1 Carr. & P. 621; Doe v. Webber, 3 Adol. & Ellis, 733; Ridley v. Gyde, 9 Bingh 349; Reed v. Dick, 8 Watts, 479; Woods v. Clark, 24 Pick 35 Haynes v. Rutter, 24 Pick. 242; Lobdell v Baker, 1 Metc. 193.
     