Stockwell et al. v. Byrne et al. effect that the sale to Byrne was void for want of appraisement. This the Court very properly refused to give, because it ignored an important element that entered into the transaction, viz: the consent of Matheny to the sale; but the Court said to the jury as follows: "The question arising upon the first instruction asked by the plaintiffs has been decided upon demurrer, and therefore the question of appraisement, as affecting the validity of the constable's sale, is not before the jury." It is objected that this instruction took from the consideration of the jury the question of fraud in fact. We think differently. As we have seen, the plaintiffs asked the Court to charge that the sale was void for want of appraisement; thereupon the Court, in seeming explanation of the ground on which the charge was refused, told the jury that the question had been decided by the Court on demurrer, and that the jury, therefore, had nothing to do with it. We do not think the jury could have been misled by the remark of the Court. They could not properly have inferred from it that they were not to consider all questions of fraud in fact, whether arising from the confession of judgment in favor of Byrne, the consent of Matheny to the sale without appraisement, or otherwise arising in the case. At the request of the defendants the Court gave the following instruction: "Before they (the jury) can find that the judgment, execution and sale thereon, in favor of the defendant Byrne, and against Matheny, were fraudulent, so as to confer no title upon the purchaser at said sale, they must be satisfied that Byrne confederated with Matheny to defraud Stockwell." The objection to this charge is thus stated in the brief of counsel for the appellant: "Confederated implies an active participation, whereas none is necessary. Fraud by Matheny, and notice to Byrne is all that need be proven to vitiate the sale." This objection, we think, is not well taken. If Byrne Stockwell et al. v. Byrne et al. knew of a fraud attempted to be perpetrated by Matheny, and purchased the property with such knowledge, he became a partaker of that fraud, and may well be said to have confederated with Matheny. Indeed a party who purchases, with a knowledge of fraud on the part of his vendor, actively participates in the fraud. He does that which enables the vendor to perpetrate the fraud. The charge may have been a little obscure to the apprehension of the jury, but if the appellants thought any explanation necessary, they could have asked a further charge on the subject. The appellants did ask, and the Court gave, the following charge, which removes any obscurity in the above mentioned, viz: "If the jury believe from the evidence that the judg ment of Byrne against Matheny was confessed for the purpose of defrauding the plaintiff, Stockwell, or hindering or delaying him in the collection of his debt, and that Byrne had notice of such intent, the judgment as against Stockwell is void, and the constable's sale on execution issued upon said judgment would confer no title upon Byrne as against Stockwell." The Court, at the request of the defendants, gave the following charge: "If the jury believe from the evidence that Matheny was justly and honestly indebted to Byrne the sum for which the judgment was rendered by Stinson (the justice) he had a right to prefer Byrne by confessing said judgment." It is admitted that this charge is correct so far as it goes, but it is claimed that the Court should have added, "if there are no distinctive badges of fraud to vitiate the transaction." If the appellants desired such a qualification, they should have asked it. As it is, the charge is well enough, especially as the Court had already charged that if the judgment was confessed for the purpose of defrauding Stockwell, Byrne having notice thereof, it was void as against Stockwell. What we have said we believe covers all the questions made in the case, unless it be whether the verdict is sustained by Crisman v. Smith, Administrator. the evidence. We can not disturb the verdict of the jury, as it is by no means clear to our minds that there was any fraud in the transaction. For aught that appears, the plaintiff's recovered as much as they were entitled to. Per Curiam.-The judgment below is affirmed, with costs. CRISMAN v. SMITH, Administrator. WITNESS-STATUTES CONSTRUED.-A defendant who is "sworn at the instance of and examined by the Court," without the solicitation of the plaintiff, and whose statements have no bearing against him, has no right, by virtue of §§ 295 and 300, 2 G. & H. 188, to insist on testifying fully as to all matters in controversy in the suit. PRACTICE IN SUPREME COURT.-The finding of the Court below will not be disturbed, by this Court, where the evidence, though circumstantial, tends to sustain it. SAME. Where evidence is not objected to in the Court below, it is too late to make the objection in this Court. APPEAL from the Fayette Circuit Court. HANNA, J.-Smith, administrator of Jacob Crisman, sued William Crisman for money had and received to the use of the deceased. Answer: 1. Denial. 2. As to a part that it was a gift, &c. It appeared from the evidence of plaintiff and defendant that the defendant and family were living in the house of, and with the deceased, during his last sickness, and at his death; that about that time the defendant collected, on a note due the deceased, the sum of 397 dollars; and sold of Crisman v. Smith, Administrator. his cattle, 60 dollars. Whether the note upon which the collection was made, had been given to the defendant, and the money received for the cattle paid over to the deceased, were disputed points in the issues and testimony. After the evidence had been given upon the part of the plaintiff and defendant both, the record states that "the defendant was sworn at the instance and examined by the Court." We can not see by the record that the plaintiff had anything to do with the introduction of the defendant's testimony, nor do we perceive that the statements made by him would have any bearing against him. If the statements were considered at all by the Court, in the determination of the issues, they were such as would be favorable. to the defendant, and the other party is not complaining here of this introduction; for, notwithstanding they were so introduced, the plaintiff had judgment. We do not think this is a case in which the circumstances are such as to have authorized the defendant in insisting, as he did, upon testifying fully as to all matters in controversy, by virtue of §§ 295 and 300, p. 188, 2 G. & H. We do not think this is a case in which the question whether said sections are still in force, since the adoption of the witness law of 1861, 2 G. & H. 168, properly arises, and we do not, therefore, decide that point. It is urged that the evidence as to the 60 dollars having been converted by the defendant to his use, was not sufficient. As there was some evidence, circumstantial, it is true, on the point, we will not disturb the finding. Several witnesses were examined as to the "general reputation of defendant," and testified that it was bad. The defendant does not appear to have asked that the questions should be made more specific; nor to have objected to the introduction of testimony of that character. Appellant now Evans v. Ashby et al. assumes that the evidence was introduced for the purpose of impeaching said defendant as a witness. We are not informed by the record for what purpose the evidence was given. The circumstances detailed by other witnesses made the testimony, if legitimate at all, as effective in an effort to show that the defendant had improperly appropriated the 60 dollars to his own use, as it might have been to impeach. We are inclined to the opinion that as the evidence was not objected to when offered, such objection now comes too late. Per Curiam.-The judgment is affirmed with 5 per cent. damages and costs. John S. Reid, for the appellant. James C. McIntosh, for the appellee. EVANS V. ASHBY et al. 99 15 139 197 22 15 140 440 JUDGMENT JURISDICTION.-The judgment of a Court having juris- SHERIFF'S SALE-APPRAISEMENT.-Where the law requires a sheriff APPEAL from the Pike Circuit Court. DAVISON, J.-Daniel, Benjamin, and John Ashby, who were 22 15 155 35 |