
    JOHN and ELIZABETH LUTZ, Administrators of ELIAS LUTZ v. DAVID YOUNT.
    A question having arisen in the course of a trial as to an arrangement in regard to a horse which was the subject of controversy, held that evidence of a similar arrangement at the same time between the parties in regard to a cow was relevant, either as part of the res gesta, or as part of the conversation, and thus showing the entire arrangement.
    A fictitious sale of a horse to prevent it from being impressed by the Confederate Government will not estop the owner from afterwards asserting his title thereto; and in such case, upon the vendee’s claiming title to the horse, the vendor may bring suit, without making a formal tender of the note which was one of the forms attending the sale.
    It having appeared upon the trial that the note was in court, and apparently not claimed by the plaintiffs, held to have been proper for the court to clear away any doubts by enquiring of the counsel for the plaintiffs at a subsequent stage of the trial, what disposition it was proposed to mate of the note.
    In charging the jury the Judge inadvertently stated an argument, which was then suggested by himself, as having come from the plaintiffs' counsel; held that the defendant had no cause to complain.
    The mile, that possession is prima facie evidence of property, has no application to a case of admitted bailment.
    
      (Blossom v. Van Amringe, Phil. Eq., 133, cited and approved.)
    Replevin for a horse, tried upon the plea Property in the defendant, before Buxton, J., at Spring Term, 1867, of the Superior Court of Catawba.
    The horse had belonged to the plaintiffs’ intestate, and in 1862 was placed with the defendant to break and make use of for its feed. It remained there until April, 1864, when it was agreed that in order to keep it from being impressed by the Confederate Government the defendant should claim it as his own until the danger was over, and, as part of the arrangement, a note for $400 was executed by the defendant. The intestate died in the Fall of 1864, and when the administrators demanded the horse the defendant claimed it as his own, setting up an alleged bona fide purchase from the intestate subsequent to the arrangement above.
    A principal witness for the plaintiffs was one of themselves (John Lutz), who, although the defendant objected to it, was allowed to prove that at the time of the arrangement in regard to the horse a similar one was made between the same parties in regard to a cow, which the defendant, in compliance with the understanding, subsequently gave up. In speaking of the note for $400, this witness said that at the time when he demanded the horse of the defendant he had it with him, but “ he (defendant) got into a rage, and I don’t remember tendering it to him, tho’ I intended to give it up; it is here now.” After the case had been closed by both sides his Honor asked of the counsel for the. plaintiffs, “ what disposition was proposed to be made of the $400 note ?” and they replied that it was at the disposal of the defendant.
    It was insisted by the defendant that, as by his own showing the plaintiffs’ intestate had parted with the horse in order to practice a fraud upon the Confederate Government, a court of justice would not relieve him from the consequences of such fraud. He also asked the court to charge the jury that the defendant’s possession was prima facie evidence of title.
    
      The court refused to give these instructions, saying that the ordinary rule as to the effect of possession as matter of evidence did not apply to a case of admitted bailment. In summing up, the court also inadvertently said: “ It is insisted by the plaintiffs, through their counsel, that their readiness to place the horse-note at the disposal of the defendant is a circumstance going to show their honesty of purpose and readiness to carry out in good faith the alleged arrangement.” This suggestion of honesty, &c., was then made for the first time.
    Verdict for the plaintiffs; rule for a new trial; rule discharged; judgment, and appeal by the defendant.
    
      Bragg, for the appellant.
    1. The evidence in regard to the cow was improperly admitted. Bottoms v. Kent, 3 Jon., 156, and cases in 1 Bat. Dig., 453.
    2. A tender of the note to defendant when the horse was •demanded, or at least at some time before suit brought, was necessary. The offer at the trial was of no avail.
    3. The court had no right to suggest to the plaintiffs a •.surrender of the note, or to intimate an opinion as to the honesty and fairness of the plaintiffs.
    
      Bynum, contra.
    
    1. The charge of fraud upon the Confederate Government is of no a>vail. Blossom v. VanAmringe, Phil. Eq., 133.
    2. There was no trade as to the horse. Pothier Oblig., 4; 2 BL, 442.
    3. Evidence in regard to the cow was admissible, being a part of the res gestae — a part of one entire transaction. 1 Stark. Ev., 39, 47, 48; Davis v. Campbell, 1 Ire., 482; State v. Emory, 6 Jon., 133.
   Pearson, C. J.

We are of opinion that the defendant has ;no cause to complain of the ruling of his Honor.

1. The evidence as to the cow was admissible as a part of the “ res gestee,” and also as forming a part of the conversation at the time the plaintiff claimed the horse as his father’s property; so it could not well have been separated, and was a relevant circumstance to show what was the entire arrangement between the parties.

2. The objection that the arrangement was a fraud upon the Confederate Government is fully met by the case of' Blossom v. Van Amringe, 1 Phil. Eq., 133. Indeed it was not insisted upon in this court.

3. At the time the plaintiff claimed the horse as his father’s, property, the defendant himself put an end to the bailment by disavowing the relation and asserting an absolute property in himself. This gave the plaintiff a good cause of action in replevin, detinue or trover, and it was complete without a formal tender of the note. The defendant, by his conduct, dispensed with the necessity of a formal tender;, for why make it, as the defendant asserted an adversary title ?

4. The plaintiff in giving testimony, said he did not remember tendering the note, “ though I intended to give it up, it is here now,” evidently meaning “ for the purpose of being given up;” and after the evidence was closed, it was-entirely proper for his Honor', in order to remove all -uncertainty, to enquire what disposition the plaintiff proposed to. make of the note; for, as we have seen, after what took, place when the horse was demanded, and what occurred at the trial, the cause of action was complete without a formal tender of the note.

5. The defendant has no cause to complain that, in summing up, which he seems to have done very fully on both, sides, his Honor suggested a view as coming from the plaintiffs' counsel, instead of one which he was at liberty to suggest as coming from himself, which he might have apprehended would give it some undue influence. Indeed, when* I was on the Superior Court bench this mode of summing-up was very usual, lest the jury might attach more importance to an argument suggested for their consideration by the Judge, than if it was put in the shape of coming from the counsel

6. His Honor properly declined to give the charge requested as to the effect of possession, for the reason stated by him.

Per Curiam. There is no error.  