Robinson v. Dauchy.

posed by the judge. And they cannot set up that by which they are not injured, but from which they are expressly exempted, and that too against the very persons who exempt them. Therefore the judge erred in deciding that the defendants would not be bona fide purchasers in the case he supposed, and thus biasing the jury by error in fact and in law, to decide the main point in the case against us. The defendants gave full value for the goods. They had no notice of the alleged false pretences. They are therefore bona fide purchasers. Tomlin's dictionary defines bona fide, really. Defendants are real or actual purchasers. Both parties intended a purchase, it was not a sham. As to what is a bona fide purchaser, see 10 John. Rep. 457, cited in 17 Wend. 30, 25; 1 R. S. 756, 1; 2 Id. 359, 4; 9 Wend. 157. Without notice, means without notice, in this case, of Kline's false pretences. These cases show that he buys without notice, who has no notice of the fraud by which the goods were obtained. (2 Term Rep. 750. 5 Id. 175. 6 Metc. 68. 11 Serg. & Rawle, 377. 12 Pick. 313. 1 Cowen, 622. 14 John. Rep. 415. 5 John. Ch. Rep. 54. 13 Wend. 570 to 572.) The statute has not changed the offence with which Kline is charged, at common law, and cannot, except expressly or by necessary implication. (4 Mass. Rep. 439. Story on Const. 407. 3 Hill, 396. 6 Id. 144.) As to what the common law is, see 1 R. L. 41 ; 1 R. S. 54; 1 Mass. Rep. 60, 61; 2 Id. 533, 534; 8 Pick. 315 to 317; 16 Id. 115, 116. If the charge of the judge may have improperly impressed the jury against the defendants, or the chances are equal that it did, the verdict ought to be set aside. (3 Wend. 418. 11 Id. 83. 4 Hill, 271.)

By the Court, WILLARD, J. The goods in question were purchased of the plaintiffs under false pretences amounting to a felony. (2 R. S. 677, 53. Id. 702, 30. The People v. Haynes, 14 Wend. 546.) Prima facie, the law of Massachusetts, where the fraud was committed, is like our own; and when no proof is given on the subject, our courts will act on their own laws. (2 Hill, 201, 2. 22 Wend. 322 to 324.

Robinson v. Dauchy.

Hill's S. C. Rep. 319. Note to Hoffman v. Carow, 22 Wend. 285.) Where goods are stolen, or obtained by means of a fraud amounting to a felony, the vendor may retake the goods, even as against the bona fide purchaser from the thief, or the fraudulent vendee. (Andrew v. Dietrich, 14 Wend. 31, 36. 20 Id. 275, 6. 22 Id. 285, 294, 5, 318, et seq. 11 Id. 80.)

The charge of the circuit judge was more favorable to the defendants than was warranted by law and the facts. The charge, by submitting to the jury the question as to the good faith of the defendants' purchase, and in telling them a purchaser in good faith from the fraudulent vendee, who had obtained them by fraud or false pretences, could hold them as against the real owner, virtually instructed the jury that there was no difference between a fraudulent and a felonious acquisition of property; and that the bona fide purchaser, in both cases, was alike protected. This error in the charge was favorable to the defendants, and cannot be complained of by them. That it was not necessary that Kline should have been convicted of the felony, to enable the owner to reclaim his goods, see 22 Wend. 285, note. The rule on that subject, in this country, is different from that prevailing in England, arising from the statute which prevents a merger of the individual injury in the crime against the public.

But supposing the goods were not feloniously obtained by Kline from the plaintiffs, they were clearly acquired by him fraudulently. Even in such case, the defendants, deriving title from the fraudulent vendee, cannot defeat the claim of the vendor, unless their purchase was in good faith and without notice of the fraud. They may shelter themselves, indeed, under Hodge, if his purchase was in good faith and for a valuable consideration. But it is plain that Hodge did not purchase in good faith and without notice. He parted with no new consideration. He took them to recover a precedent debt due to his principal, under circumstances of great suspicion. And the defendants who purchased from him, did so out of the usual course; at a sum much less than their value; with unusual and altered and defaced marks upon them, calculated to arouse

Nolton v. Moses.

suspicion and stimulate inquiry. That such a purchaser acquires no title, as against the original owner, who has been defrauded, see 1 Hill, 302, 311; 15 Mass. Rep. 156; 15 John. Rep. 147. The original owner under such circumstances has a right to follow the goods into the hands of the mala fide purchaser, He is not bound first to exhaust his remedy against the person by whom he was first defrauded.

The defendants' counsel, on the argument of this cause, raised an objection to the competency of the plaintiffs' attorney as a witness, The objection on the score of interest was waived at the trial. It is now for the first time put upon the ground that he was the attorney, and that a person standing in that relation should be excluded from testifying, upon principles of public policy. We have adopted no such rule in this state, even if the objection in this stage of the cause could be listened to at all. The testimony of a witness standing in that relation to one of the parties to the suit, is open to observation before the jury.

We see no reason to disturb the verdict, The motion for a new trial must therefore be denied.

SAME TERM. Before the same Justices.

NOLTON VS. MOSES.

The commentaries of the judge, at the circuit, upon the evidence, are not the subject of exceptions. If the circuit judge inadvertently misstates the facts, the counsel must correct him, at the time. If he gives an opinion upon the evidence, it cannot be reviewed upon a bill of exceptions.

It is proper for a circuit judge to apprize the jury as to the effect of their verdict upon the parties, in respect to the question of costs.

A circuit judge may, in his discretion, limit the number of witnesses to be examined on a collateral issue as to the character of the plaintiff, or that of either of the witnesses in the cause.

This discretion may be exercised either by laying down a rule, at the commence

Nolton v. Moses.

ment of the examination, limiting the number of witnesses to be called on each side, or by interposing and arresting the further examination, when, in the opinion of the judge, the inquiry as to character ought not to be pushed further. If this discretion is exercised in such a manner as to work injustice to either of the parties, the remedy is by a motion for a new trial, on a case. The decision of the judge upon that point cannot be reviewed on a bill of exceptions.

THIS was an action for slander, tried at the Rensselaer circuit before PARKER, Circuit Judge. The alleged slander consisted in charging the plaintiff with being a thief. The defendant pleaded the general issue, and gave notice of justification. The uttering of the slanderous words was proved by James Powell and other witnesses. The defendant, after introducing several witnesses to prove his justification, examined Squire Allen for the purpose of impeaching the character of Powell, the plaintiff's principal witness. At the close of his examination the circuit judge remarked that a great deal of time was often unnecessarily and improperly occupied in calling a great number of witnesses to impeach and sustain the general character of a witness who had been examined, when the real character of the witness, so far as was necessary for the purpose of an impeachment, could be as well ascertained by examining a few witnesses properly selected for that purpose. He therefore would advise the parties, at the commencement of this kind of testimony, that he should only allow three witnesses on each side, to be examined as to the general character of a witness. The counsel for the defendant then stated they had some fifteen or twenty witnesses in attendance for the purpose of impeaching the witness James Powell, by showing his general character to be bad. But the circuit judge said that he should confine the parties to the number of three; and the defendant's counsel excepted. The defendant then called two other witnesses to impeach Powell, and the plaintiff examined three witnesses to sustain his testimony. The circuit judge charged the jury, among other things, that the evidence of Van Every, one of the plaintiff's witnesses, showed the speaking of actionable words, without the testimony of either of the other witnesses. That if the jury believed the testimony of

Nolton v. Moses.

Powell, who stood unimpeached, it would then become necessary for them to inquire whether the defendant had proved a justification. That in order to prove the defence contained in the notice, the defendant must produce sufficient evidence to warrant the jury in convicting the plaintiff of the crime of larceny, if he were upon trial before them on an indictment for that offence. That in reference to the amount of damages, the jury had a right to take into consideration the fact that the defendant had spread a justification of the slander upon the record; and if he failed to prove it, it should increase the damages to be given against him. That it was also proper for the court to instruct the jury with regard to the effect of their verdict upon the costs of the suit. That if the verdict should be less than fifty dollars, the plaintiff could recover no more costs than damages. That if he recovered fifty dollars, or over, he was entitled to recover his taxed costs; and if he recovered over $250, he would receive costs at the highest rate. The defendant's counsel excepted to the whole of the charge. In reply to a request of the defendant's counsel that the judge should charge the jury that they were the only judges of the amount of damages, and that they should give such damages as they thought proper, without respect to costs, his honor decided that the jury were the only judges of the damages, but that they had a right to take costs into consideration. To this decision the defendant's counsel also excepted; and the jury having rendered a verdict for the plaintiff for $350, the defendant, upon a bill of exceptions, moved for a new trial.

Davis & Woodcock, for the plaintiff.

R. M. Townsend, for the defendant.

By the Court, WILLARD, J. The verdict in this case, for 350 dollars, may be disproportionate to the injury inflicted by the defendant; but it was probably the result, in part, of the manner in which the defence was conducted. The justification was a decided failure; and no doubt the attempt to estab VOL. III.

5