nominally in such third person, but the sale actually made by the debtor, and the consideration received by him.
Upon questions of this description, depending on various circumstances, a considerable latitude is indulged in the admission of evidence.
Where the charge of a judge has a tendency to make an erroneous impression upon a jury, and to mislead them in their views of the case, a new trial will be granted.
Error from the Yates common pleas. Cary sued Benham in trover for a wagon. Benham justified the taking as sheriff of Yates, under an execution in favor of one Phelps, against one Blakesley, in whose possession the wagon was found. The levy was made under the execution on the 16th November, 1831. Blakesley had been the owner of the wagon, and on the day that Phelps obtained his judgment, sold the wagon to one Gurnsey, who, in the spring of 1831, sold it to Cary, the brother-in-law of Blakesley, and Blakesley testified that after Cary became the owner, he borrowed the wagon of him, and-had possession of it the most of the time until it was levied upon by the sheriff. There was other evidence in the case. The defendant offered to prove that about the time that Phelps obtained his judgment, Blakesley sold a piece of land to one Harris, and told him that Cary would execute the deed of the land; that Cary did execute the deed; that Harris paid for the land in property which he delivered to Cary, who immediately let Blakesley have it to his own use ; which evidence was objected to and rejected by the court, and the defendant excepted. The court charged the jury that there were two questions for them to decide : First, whether the sale from Gurnsey to Cary was bona fide, and secondly, whether the mere borrowing of the wagon was sufficient to do away that sale. The judge who charged the jury observed, that Blakesley seemed to bo an unfortunate *man; that he was poor, and that his connection with the plaintiff was not enough to make the transaction fraudulent. The defendant excepted to the charge. The jury found for the plaintiff, and the defendant sued out a writ of error.
E. Van Burén, for plaintiff in error.
W. Cornwell, for defendant in error.
By the Court,
The only question in the case was, whether the wagon was really the property of Blakesley, or whether it belonged to the plaintiff, Cary. It seems to me a very clear case of a fraudulent attempt, on the part, of Cary and Blakesley, to cover up the property of the latter, and put it beyond the reach of his creditors. With a view to the question of fraud or conspiracy between Cary and Blakesley, the defendant offered to show other instances or transactions about the same time, in relation to other portions of Blakesley’s property, in which the title was nominally in Cary, but the sale actually made by Blakesley, and the consideration received by him. This evidence was objected to, and rejected by the court. With a view to the question of fraud, I think the evidence was competent; it was a transaction cotemporaneous with the one in question, and upon questions of this description, depending on various circumstances, a considerable latitude is indulged in the admission of evidence. The charge of the judge also was calculated to make an erroneous impression upon the jury, and to mislead them in the views of the ease.
Judgment reversed, and venire de novo,