
    Woodard against Paine and Lake.
    Where .iustice of the peace tried an ass‘°°t f°r batteiy, and ^?etiledpWtaf'and d?s-thereof under th®e,°en¿ ®old a waggon and harness; in an action of traKdantagainst unstable8 an¡d J^ch he ^ot>^UuJ01" u™ =curt refused to grant a new trial, although son to believe had no/acted but^muiíf a {he^extent of J}'® 'Xere strong circumstances ?° sho'v the party himself had, through his agent, purchasold unde8r°the pr£eUabo’utemount° of8th¡ gi^fst him, so sustained amount of the judgment: but still the case admitted of doubt, and the question was fairly submitted to the jury.
    The a person, a competent cannot given in evidence.
    THIS was an action of tresspass, for taking and carrying away a pair of horses, waggon and harness. The cause was tried at the Dutchess circuit, in 1817.
    The defendant, Paine, was a justice of peace in the county of Dutchess. In July, 1816, an action was brought before Paine, by one Hannah Betts, against the plaintiff in this suit, for an assault and battery. A written plea to the jurisdiction of the justice was interposed, and overruled ; and during the trial the counsel for Woodard strenuously jected to the iustice proceeding in the cause, and stated , , . , , . , , , . , - ,, . to him that the judgment would be void, and all acting under it would be tresspassers. The justice, however, perse vered, and H. Betts obtained a verdict and judgment for 15 dollars. An execution was ¡sued thereon, and delivered to the defendant Lake, a constable, who seised the goods in question, but left them with the plaintiff until the time of * sale, when they were purchased by Hine, for about 19 dollors. Andrew Lake, a witness on the part of the plaintiff, testified, that soon after Hine purchased the horses he sold them to Daniel Lake for 225 dollars, and that Daniel Lake sold them to the witness, for 227 dollars and 50 cents ; that the witness bought them for the plaintiff, and that the plaintiff gave the witness his note for 230 dollars, and also 2 dolo ’ lors in cash, the difference of the price being intended, as ’ r o ’ the witness alleged, to compensate him for his trouble, . 11- . 1 his witness being pressed, on his cross-examination, was hesitating and incoherent in his answers, especially when questioned as to the reason why the plaintiff had paid him 2 doliars in cash.
    Several witnesses were produced on the part of the defendants, to prove circumstances from which it might be inferred that Hine purchased as the agent of, and with money furnished by, the plaintiff; as, that Hine who lived in the 
      plaintiffs "family, was very poor, and unable to pay the money wpjich he had bid at the constable’s sale ; but there was no direct evidence to this effect. The counsel for the defendants offered to prove declarations of Hiñe, that he had been furnished by the plaintiff with money for the purpose of bidding for the horses, but the judge rejected the testimony. It also appeared that Hine had kept out of the way, to avoid being subpoenaed by the defendants, and that after he had been subpoenaed, he absented.himself from the trial.
    The judge charged the jury that the plaintiff was entitled to recover, as the justice had no jurisdiction in the cause which he tried, and therefore his judgment was void, and all acting under it were trespassers. That if the jury believed that the justice had acted from ignorance merely, and that his intentions were good, they ought to give such damages only as would compensate the plaintiff for the actual loss that he had sustained : that to determine this point it would be proper for them to consider the manner in which the sale was made, and how the property was afterwards disposed of, and to determine whether there had been any collusion between the plaintiff and the purchaser, by which the plaintiff obtained his property again, without paying moré than the amount of the judgment ; or, whether he had actually given the value of it : that the testimony of Andrew Lake was positive as to the fairness of the transaction, but it was opposed by many strong circumstances, and circumstances frequently afforded more satisfactory evidence than positive proof: that from the testimony he was inclined to think, that the sale of the horses was collusive, but this was a question for the decision of the jury; and that if the jury believed, from the testimony, that the defendants had acted from improper motives, and knowingly, they might give a verdict, not only for the actual damage sustained by the plaintiff, but in addition, for smart money, for the oppression and vexation which they had created.
    The jury found a verdict for the plaintiff for two hundred and seventy dollars, which was about the value of the property in question.
    
      Swift, for the defendants,
    now moved to set aside the verdict and for a new trial. 1. Because proper testimony had been rejected. 2. Because the verdict was against evidence. 3. For the misdirection of the judge. He contended, that" the evidence of the declarations of Hine ought to have been admitted, if he was an agent of' the plaintiff, it was, no doubt, admissible ; (Mott v. Kip, 10 Johns. Rep. 478.) but if he was not, yet the manner in which he took possession of the property, his declaration at the time, and the character in which he acted, were part of the res gesta, and ought to have been received in evidence. (Waring v. Warren, 1 Johns. Rep. 340. 4 Johns. Rep. 230. 1 Johns. Rep. 159.)
    2. The true measure of damages is what the plaintiff actually lost; which was 19 dollars, and no more.
    
      Hooker and P. Ruggles, contra, insisted,
    that the evidence, of the declarations of Hine was properly rejected. Though in some cases, in ejectment, evidence of the declarations of a tenant has been received, yet it has been only to satisfy doubts as to the character of the possession under the circumstances, and never as to the title. The declarations admitted were, in some degree, against the interest of the person making them. (Phillips’ Ev. 182. and note (a.) 6 Johns. Rep. 19—21.)
    It is, however, regarded as a dangerous species of evidence, and the admission of it is an exception to the general rule.
    The counsel next went into examination and discussion of the facts, to show that the verdict was supported by the evidence.
   Per Curiam.

The motion for a new trial in this case must be denied. From the nature of the cause, and the testimony that was given, there was room for an honest difference of opinion as to the conduct of the defendants, and as to the damages sustained by the plaintiff. We are inclined to think that the better conclusion is, that the magistrate acted under an honest and real impression that he had jurisdiction of the case before him. The testimony is pretty strong to show that the property was purchased in, under the constable’s sale, for the benefit of the plaintiff, so that he has only sustained damages to the • amount of the judgment against him. But the testimony on both these qUeS{¡ong might well^ be considered doubtful; it depended very much on the credibility of witnesses, and it was fairly submitted to the jury ; and we cannot say that they have so much erred as to warrant us in interfering and setting aside the verdict.

The declarations and confessions of Hine were properly excluded. He was a competent witness, and his confessions could not be received in evidence. There was no direct proof that he was the plaintiff’s agent, or acted in his behalf. U pan the whole, although the damages are higher than we think they ought to have been, yet, as it is an action sounding in tort, the verdict must stand.

Motion denied  