
    John Long vs. Guy Lamkin.
    A witness who is called to discredit another witness, and defeat the effect of hi» testimony, may be asked whether he has had a quarrel with such other witness.
    In an action of trespass against a deputy sheriff, to recover the value of the stock and produce of a farm which had been seized and sold by him under an execution against A., the occupant of the farm, the plaintiff alleging that the stock and produce belonged to him, and had never belonged to A., and the record title to the farm being in the plaintiff and derived from sources wholly distinct from A., evidence that A., about the time of the conveyance of the farm in question to the plaintiff, had made fraudulent conveyances of other property to other persons than the plaintiff, is inadmissible for the defendant; nor can the title of the plaintiff to the property in question be affected by acts and sayings of A., made in the absence and without the knowledge of the plaintiff.
    A., a deputy sheriff, levied an execution against B., on certain live stock and produce on a farm occupied by B. C. forbade the sale, claiming that all the property belonged to him, and, at the sale, he bid in most of the stock, including a certain cow. A. gave C. a bill of sale of all the property purchased by him, in eluding this cow, but refused to take pay for the cow, excepting her in the receipt at the foot of the bill, and reciting that the price of her was tendered him by C. In an action of trespass brought by C. against A., to recover the value of the property sold by the latter, A. specified in defence that, after the sale, the cow was returned by him to C., and accepted by C. in full of all damages, if any, he was entitled to; and, a verdict having been rendered for C. for the value of the property including the cow, it was held that he could have judgment on this verdict only on condition that he should remit expressly on the record the price of the cow, and take judgment only for the balance.
    This was an action of trespass, brought to recover the value of a quantity of hay, wheat in the straw, oats in the straw, and some cattle and hogs, the stock and produce of a farm in Vermont, which were seized by the defendant, as deputy sheriff’, on an execution against James Long, the father of the plaintiff, and sold to satisfy the same; and it was alleged by the defendant that all the property belonged to the father, both the farm and the produce.
    At the trial in the court of common pleas, the evidence showed that the plaintiff had resided in Massachusetts since 1834, and that the father resided on the farm, the record title to which was in the plaintiff, for four years before the seizure of the property, and had been and was in the possession of the property, when the same was seized on execution.
    
      The deposition of Lucius Haskell was offered by the defendant, for the purpose, among other things, of contradicting James Long, whose deposition the plaintiff had introduced, by showing that James Long had, in confidence, made statements to Haskell which were at variance with the testimony given by James in his deposition; and, on cross-examination, the plaintiff asked Haskell whether he had not had a quarrel of any kind with James Long. This question was objected to by the defendant, but the presiding judge, Mellen, J., admitted as competent evidence the following, being a part of his answer to the question, to wit, “ that he had had some difficulty with James Long.”
    The defendant offered to show that about the time of the conveyance of the farm upon which the produce sued for was raised, James Long had made fraudulent conveyances of other property to other persons than the plaintiff, for the purpose of showing what the intentions of the father, as to defrauding his creditors, were, but the judge rejected the evidence. The defendant offered evidence of various declarations of James Long, made after the conveyance of the property to the plaintiff, while he was in possession of the property sued for; such as that he, James Long, “ owned all the property on the farm; that the plaintiff had no claim whatever on it; ” the judge admitted the evidence for the purpose of contradicting James Long’s testimony, already in the case, but ruled that the jury must not regard them as affirmative proof of title in James.
    Among the articles sued for was a cow, which, as it appeared by the plaintiff’s evidence, had been purchased by him, and put on the farm and into the possession of the father. At the time of the seizure of the stock by the defendant, this cow, with some steers, some heifers, and some hogs, some of which the defendant contended, and the jury found did not belong to the plaintiff, and that one of them was the property of James Long, was taken and sold. At the time of the sale, fomteen days after the seizure, the plaintiff’s agent in Vermont forbade the sale, and claimed all the property as belonging to the plaintiff, not separating or distinguishing this cow from the rest of the stock. At the sale, the plaintiff’s agent bid in most of the stock and among them this cow, for which he bid the sum of $10.55, and drove them back and put them again on the farm. Four days afterwards, when the agent went to the defendant to pay him the amount of his bids, the defendant took the pay for the rest of the stock, and gave the agent a bill of sale of the whole, including this cow, which bill he receipted at the foot in these words: — ■
    “ Received payment of the above bill of John Long, by the hands of Isaac Cummings, except for the cow which was bid off by said Cummings, for said John Long, at $10.55, and said Cummings tendered me the money for said cow December 18, 1846, for said Long.”
    The defendant had specified in defence that, after the sale, the cow was returned by the defendant to the plaintiff, and accepted by him in full of all damages, if any, he was entitled to. The above was all the evidence in relation to any such return and acceptance.
    The judge instructed the jury, that, in the absence of evidence of a release by the defendant to the plaintiff, of the amount of his bid for the cow, the measure of damages to which the plaintiff would be entitled, if any, would be the price at which the plaintiff bought the cow at the sale. The foregoing is all the evidence of a release of the defendant’s claim on the plaintiff for the price bid for the cow.
    It appeared that a part of the purchase-money of the farm was obtained by the plaintiff from the sale of a lot of land, the title to which stood in the plaintiff, but which the defendant contended was, in reality, the property of James Long, and had been fraudulently held by the plaintiff, merely for the purpose of keeping the same from his father’s creditors. This lot was known as the "Wheeler farm, and was situated in Guildhall, Vermont. James Long owned it, and, in 1834, conveyed it to John Bothell, who then gave two notes, signed by himself jointly with the plaintiff, to a third person, for a debt of James Long. The plaintiff offered evidence that those notes were paid by him, and that the deed of the land was given to him in consideration of such payment.
    The defendant introduced evidence that James Long paid the notes, and had the deed made to the plaintiff to put the land out of the reach of his creditors, and thereby defraud them. There being no evidence, that, at the time of such conveyance to the plaintiff, James was indebted to any amount, or that he had not other property; and there being no evidence that the debt of the creditor, at whose suit the property sued for was seized, was in existence at that time, the plaintiff objected that, by the law of Vermont, it was not competent for the defendant to impeach such conveyance as fraudulent as to creditors, without showing that it was made with a view to future credits to be obtained by James; and the judge so ruled, and further instructed the jury that, if they found that, after such conveyance, the farm was held by the plaintiff in trust for the benefit of the father, and continued to be so held as a trust recognized by the parties, until after James became involved in debt, that then any abandonment or release by James of his right or claim under the trust would be in fraud of his creditors, and, as to them, the price for which it was sold by the plaintiff, in 1844, might be considered as the property of James Long; and the land bought with such funds and held by the plaintiff, might be considered as held by him in fraud of James’s creditors.
    The jury returned a verdict for the plaintiff, and assessed his damages at the sum of $60.55; and the defendant alleged exceptions.
    
      íl. F. Durant, for the defendant.
    
      W. H. L. Smith, for the plaintiff.
   Fletcher, J.

This is an action of trespass. The defendant, a deputy sheriff in Vermont, having an execution against one James Long, for the purpose of satisfying it, took the stock and produce of a farm in Vermont, on which James Long lived.

The plaintiff, who is a son of James Long, brings this suit to recover the value of the property thus taken, alleging that it belonged to him, and that he was also the owner of the farm upon which the stock and produce were taken, and upon which his father, the said James Long, lived. The defendant justified on the ground, that the property taken belonged to said James Long, and was rightfully taken to satisfy the execution against him, and that he was the really rightful owner of the farm, though upon the paper title it stood in the name of said John Long.

The deposition of said James Long was used in behalf of the plaintiff.

The defendant called one Haskell, for the purpose of contradicting and impeaching the testimony of said James Long, by showing that he had made statements to said Haskell, at variance with the testimony of said James in his deposition. The plaintiff asked Haskell if he had not had a quarrel with said James Long; to this question the defendant objected, but the court admitted the evidence of said Haskell, “ that he had had some difficulty with said James Long.”

The admission of this answer forms the ground of the first exception on the part of the defendant, for the reason, as alleged, that it was immaterial whether or not Haskell had had -a quarrel with James Long, the witness of the plaintiff.

But as Haskell was called to discredit James Long, and defeat the effect of his testimony, the inquiry of Haskell, whether or not he was testifying under the influence of hostile feelings toward said James Long, was not immaterial, but pertinent and proper. It had a bearing upon his credibility. A witness may well be supposed to be better inclined and more ready to impeach and discredit an enemy than a friend.

The defendant offered to show that, about the time of the conveyance of the farm upon which the produce sued for was raised, the said James Long had made fraudulent conveyances of other property, to other persons than the plaintiff, for the purpose of showing what the intentions of the father as to defrauding his creditors were, but the court rejected the evidence. This rejection is the ground of the next exception on the part of the defendant. The defendant also offered evidence of various declarations of James Long, made after the conveyance of the property to the plaintiff, while he was in possession of the property sued for, such as that, he, James, “ owned all the property on said farm ; that the plaintiff had no claim whatever to it.” The court admitted the evidence for the purpose of contradicting James Long’s testimony in the case, but ruled, that the jury must not regard them as affirmative proof of title in James Long. To this ruling the defendant excepted.

The present case does not come within the principles and authorities relied upon in support of the two preceding exceptions.

If John Long had claimed under a conveyance from James Long, alleged to have been fraudulent, then the acts and declarations of James Long, the grantor and one of the parties to the alleged fraudulent conveyance, being within the principles stated in the authorities referred to, might be admissible in evidence. But John Long, the plaintiff, sets up no conveyance from James Long, and claims no title whatever to the property derived from him. The plaintiff derives his title to the property in question from sources wholly distinct from, and independent of, James Long. James Long does not appear at all in the paper title under which the plaintiff claims the real estate, and the plaintiff denies that James ever had any title to the personal estate.

There is no principle upon which the acts and sayings of James Long, a stranger to the title, and acts and sayings in the absence and without the knowledge of John Long, can be admitted to affect the title of John Long, the plaintiff. The rulings of the court, as before stated, were, therefore, correct.

The next exception taken by the defendant is, that the court erred in instructing the jury, that a fraudulent sale of the farm, to put it out of the reach of his creditors, could not be impeached except by a then creditor of James Long, and that the defendant, representing the rights of subsequent creditors, could not impeach it.

This exception does not appear to be supported in point of fact. No such instruction to the jury appears by the report to have been given. In truth, it is difficult to see how such instruction would have any application to the facts of the case. It does not appear that James Long ever made any conveyance to the plaintiff; that, at the time when the farm was conveyed to the plaintiff by another person, there was any then creditor of James Long, it not appearing that he was at that time indebted to any person.

The instructions to the jury do not conflict with the doctrine, that a conveyance, fraudulent at the time of making it, might be avoided in favor of subsequent creditors, which is the doctrine supported by the authorities to which the defendant refers.

The instructions, as actually given, appear to be sufficiently favorable to the defendant, and no exception is taken to them.

It appeared by the evidence that a part of the property taken and sold by the defendant, and for which this suit was instituted, was one cow. All the property was bought by the plaintiff, by his agent, and put back on the farm, including this cow. Payment for the property thus bought in was not made at the time of the sale, though it was all delivered to the plaintiff’s agent, including the cow, and was ever after-wards held by the plaintiff.

When the agent of the plaintiff went to the defendant, to pay for the property, the defendant took the pay for the stock, except the cow, and gave the agent a bill of sale of the' stock, including the cow, which he receipted at the foot in these words : Received payment of the above bill of John Long, by the hands of Isaac Cummings, except for the cow which was bid off by said Cummings for said Long, at $10.55, anc said Cummings tendered me the money for said cow, Decern’ ber 18, 1846, for said Long.”

The officer had become satisfied that this cow belonged tc the plaintiff, and therefore refused to take pay for her, bui returned her without pay.

The plaintiff claimed to recover, in this suit, for the cow as well as for the other property. The defendant specified ii defence that, after the sale, the cow was returned by the de fendant to the plaintiff, and accepted by him in full of al damages, if he was entitled to any.

The court instructed the jury that, in the absence of evidence of a release, by the defendant to the plaintiff, of the amount of his bill for the cow, the measure of damages tc which the plaintiff would be entitled, if any, would be the price at which the plaintiff bought said cow at said sale. To this instruction the defendant excepts.

A verdict was returned for the plaintiff, including, of course, the value of the cow. Thus the plaintiff has got his cow, and also a verdict for the value of her.

In this line of operation, the whole process will be, the plaintiff, while he has the cow in his possession, will take from the defendant, as a trespasser, the value of the cow, and then the plaintiff, as a purchaser, will pay back to the defendant, as the vendor of the cow, the same money.

The instruction, that the jury might give the plaintiff the value of his cow, notwithstanding he actually had her again, was for the reason that the defendant had not given to the plaintiff a release for the amount of his bid for her; but the defendant had in fact returned the cow, and had put in writing that he refused to receive the sum bid for her, when tendered to him, and thus expressly waived his claim to it in writing, and had put in his specification of defence that, after the sale, the cow was returned by the defendant to the plaintiff, and accepted by him in full of all damages.

What occurred between the parties before the institution of this suit, was a sufficient acquittance, by the defendant to the plaintiff, of all claim to the purchase-money, so that the plaintiff, having the cow returned, and received, and kept by him, would have no right of action for the value of the cow. The plaintiff, therefore, can have judgment on his verdict, only on condition that he remits expressly on the record the price of the cow, and takes judgment only for the balance.

Judgment accordingly.  