Wright, C. J.
It is first claimed, that the court erred in excluding the testimony of Mrs. Boyd, the widow of the attachment defendant, when offered by the appellants. To fully understand the question here presented, a brief reference to the testimony and position of the parties, becomes necessary. The defendants insist that the sale from Marsh to plaintiff, was not, at the time of the attachment of the goods, so complete, as against them, as to pass the title; but that if it was, it was fraudulent and made to hinder and delay the creditors of said Boyd. It seems that Boyd, Marsh and Wright, had been in partnership as merchants; and the plaintiff claims, that prior to the sale to him, Marsh had purchased the interest of the other parties in said goods. On the other hand, defendants insist that there was no sale to Marsh, or if any, that it was fraudulent, and that in truth and in fact, there was a combination between plaintiff, Boyd and Marsh, to defraud the creditors of Boyd; and that the sale to plaintiff was made with that object and ]3urpose. After the attachments were levied, and before the trial of this case, Boyd died, and as shown by the bill of exceptions, his widow was offered as a witness, by defendants. It was not sought to elicit from her, any conversation between her and her late husband, or any communication he -may have made to her on. the subject of said sale, but to prove circumstances within her knowledge, which might tend to show, that the sale to plaintiff was fraudulent, and made to hinder and delay the creditors of her late husband, as also the creditors of the firm. Being objected to by plaintiff, on the ground of interest, the witness was not allowed to testify to these matters, and defendants excepted. .
Was the witness competent? Whether Boyd, if living, [51]*51would be a competent witness, is a question upon which the authorities are by no means agreed. It is believed, that it has never been determined in this state. Treating it as a new question, therefore, in this court, which rule shall we adopt? We answer, that while ive have some hesitation, yet upon the whole, we incline to the opinion that he would be competent, and shall so hold. His interest, we regard as a balanced one — his liability equal, whatever the result of the suit. This is the ground taken by those authorities which hold the vendor to be a competent witness for an execution plaintiff; and it recommends itself to us, as being quite as just and reasonable as the contrary rule. And aside from the influence of adjudicated cases, two considerations have had weight with us, in arriving at this conclusion. The first is, the rule recognized in Cutter v. Fanning, 2 Iowa, 580, that courts will let in truth, whenever precedent will admit it, by holding objections to apply to the credit, rather than' the competency of a witness. To give this rule a liberal instead of a restricted operation, is the tendency of all the more recent legislation and decisions in the several states. In the second place, while it is said in trials of this character, involving questions of fraud, that the interest of the vendor is with the creditor, and against the claimant, the experience of every lawyer will sustain the assertion, that in nine cases out of ten, the feelings — the strongest bias, if not the interest — of the witness, is with the vendee or claimant, and his whole effort is to defeat his creditor. We, therefore, conclude that Boyd, if living, would be a competent witness; and as a consequence, that his wife should have been admitted when offered by the defendants. It is not improbable that she would be competent, though he might have been incompetent. But without determining this, it is sufficient to say, that if he would be competent, she would most certainly be.
The counsel for appellee insist, that the testimony was properly excluded for other reasons. Without referring to them, however, it is sufficient to say, that the only objection made and determined in the court below, was that the witness [52]*52was interested, and beyond tbis, in strictness, we sbonld not go. The better practice, we think, is for this court, in the adjudication of causes, to confine itself to the disposition of those questions which were heard and determined in the court below. Cases may arise where a departure from this rule, will become necessary. This, in our opinion, is not one of them, and as to such other objections, therefore, we intimate no opinion.
The next assignment of error relates to certain instructions, given as asked by the plaintiff. It seems that the goods at the time of the alleged sale, were in Savannah, Illinois, but were afterwards removed to Sabula, Iowa, and deposited in the name of Marsh, with certain warehousemen. Eor the goods thus deposited, the usual warehouse receipts were taken, the first bearing date January 3d, and the last January 9th, 1854. In part payment for the goods, as the testimony tends to show, plaintiff drew on one H. P. Adams, of New York, for four thousand, dollars; and it was agreed, that the goods were to be deposited in these warehouses, in the name of Marsh, until said draft was duly accepted. Marsh and the plaintiff, after the sale, went to Chicago, and there deposited the warehouse receipts with Eing & Smith, indorsed in blank by Marsh, with the agreement that they were to be delivered to plaintiff, or held by them for his use, whenever they were advised of the acceptance of said draft by H. P. Adams, of New York. Marsh was owing Eing & Smith, and upon the acceptance of said draft, they were to credit him with the amount. It is fairly inferable from the testimony, either that this draft was accented, and notice thereof given to Eing & Smith, prior to the levy, or that they, prior to that time, gave Marsh credit for the amount thereof upon their books. Under this testimony, the court instructed the jury: “ First. That the assignment of a warehouse receipt in blank, is, in law, presumed to have been made and delivered to the holder of the same, on the day when the original receipt was executed, and this presumption must be rebutted by positive testimony. Second. That where goods are left with a warehouseman, who gives his [53]*53receipt for the same, tbe sale of tbe goods, and tbe assignment of the warehouse receipts, and delivery of them to tbe purchaser, is a delivery of tbe goods.” Inasmuch, as tbe testimony sufficiently shows when, in fact, tbe warehouse receipts were assigned, and that such assignments and delivery were prior to tbe levy of tbe attachments, it is unnecessary to consider whether tbe first instruction, as an abstract proposition, is or is not correct. To ascertain tbe time of tbe transfer, tbe jury bad sufficient evidence, without resorting to tbe legal presumption that they were assigned on tbe day of their date. And should we even conclude, that tbe instruction was erroneous, tbe case would not, for that reason, be reversed, for it would be, at most, but an error without prejudice to tbe party complaining. Hayden v. Plummer, 2 Hill, 205; Atkinson v. Lester, 1 Scam. 407; U. S. v. Wright, 1 McLean, 509; Rhett v. Poe, 2 How. 457.
Tbe appellants insist, that tbe second instruction is in conflict with tbe ruling of this court, in tbe case of The Merchants and Mechanics' Bank of Chicago v. Hewitt, 3 Iowa, 93. That was a suit by tbe assignee of a warehouse receipt in bis own name, against tbe maker, to recover tbe value of certain corn therein named. Tbe defendant plead as a set-off, a claim against tbe original bolder of tbe receipt, as well as some other defences.
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Wright, C. J.
It is first claimed, that the court erred in excluding the testimony of Mrs. Boyd, the widow of the attachment defendant, when offered by the appellants. To fully understand the question here presented, a brief reference to the testimony and position of the parties, becomes necessary. The defendants insist that the sale from Marsh to plaintiff, was not, at the time of the attachment of the goods, so complete, as against them, as to pass the title; but that if it was, it was fraudulent and made to hinder and delay the creditors of said Boyd. It seems that Boyd, Marsh and Wright, had been in partnership as merchants; and the plaintiff claims, that prior to the sale to him, Marsh had purchased the interest of the other parties in said goods. On the other hand, defendants insist that there was no sale to Marsh, or if any, that it was fraudulent, and that in truth and in fact, there was a combination between plaintiff, Boyd and Marsh, to defraud the creditors of Boyd; and that the sale to plaintiff was made with that object and ]3urpose. After the attachments were levied, and before the trial of this case, Boyd died, and as shown by the bill of exceptions, his widow was offered as a witness, by defendants. It was not sought to elicit from her, any conversation between her and her late husband, or any communication he -may have made to her on. the subject of said sale, but to prove circumstances within her knowledge, which might tend to show, that the sale to plaintiff was fraudulent, and made to hinder and delay the creditors of her late husband, as also the creditors of the firm. Being objected to by plaintiff, on the ground of interest, the witness was not allowed to testify to these matters, and defendants excepted. .
Was the witness competent? Whether Boyd, if living, [51]*51would be a competent witness, is a question upon which the authorities are by no means agreed. It is believed, that it has never been determined in this state. Treating it as a new question, therefore, in this court, which rule shall we adopt? We answer, that while ive have some hesitation, yet upon the whole, we incline to the opinion that he would be competent, and shall so hold. His interest, we regard as a balanced one — his liability equal, whatever the result of the suit. This is the ground taken by those authorities which hold the vendor to be a competent witness for an execution plaintiff; and it recommends itself to us, as being quite as just and reasonable as the contrary rule. And aside from the influence of adjudicated cases, two considerations have had weight with us, in arriving at this conclusion. The first is, the rule recognized in Cutter v. Fanning, 2 Iowa, 580, that courts will let in truth, whenever precedent will admit it, by holding objections to apply to the credit, rather than' the competency of a witness. To give this rule a liberal instead of a restricted operation, is the tendency of all the more recent legislation and decisions in the several states. In the second place, while it is said in trials of this character, involving questions of fraud, that the interest of the vendor is with the creditor, and against the claimant, the experience of every lawyer will sustain the assertion, that in nine cases out of ten, the feelings — the strongest bias, if not the interest — of the witness, is with the vendee or claimant, and his whole effort is to defeat his creditor. We, therefore, conclude that Boyd, if living, would be a competent witness; and as a consequence, that his wife should have been admitted when offered by the defendants. It is not improbable that she would be competent, though he might have been incompetent. But without determining this, it is sufficient to say, that if he would be competent, she would most certainly be.
The counsel for appellee insist, that the testimony was properly excluded for other reasons. Without referring to them, however, it is sufficient to say, that the only objection made and determined in the court below, was that the witness [52]*52was interested, and beyond tbis, in strictness, we sbonld not go. The better practice, we think, is for this court, in the adjudication of causes, to confine itself to the disposition of those questions which were heard and determined in the court below. Cases may arise where a departure from this rule, will become necessary. This, in our opinion, is not one of them, and as to such other objections, therefore, we intimate no opinion.
The next assignment of error relates to certain instructions, given as asked by the plaintiff. It seems that the goods at the time of the alleged sale, were in Savannah, Illinois, but were afterwards removed to Sabula, Iowa, and deposited in the name of Marsh, with certain warehousemen. Eor the goods thus deposited, the usual warehouse receipts were taken, the first bearing date January 3d, and the last January 9th, 1854. In part payment for the goods, as the testimony tends to show, plaintiff drew on one H. P. Adams, of New York, for four thousand, dollars; and it was agreed, that the goods were to be deposited in these warehouses, in the name of Marsh, until said draft was duly accepted. Marsh and the plaintiff, after the sale, went to Chicago, and there deposited the warehouse receipts with Eing & Smith, indorsed in blank by Marsh, with the agreement that they were to be delivered to plaintiff, or held by them for his use, whenever they were advised of the acceptance of said draft by H. P. Adams, of New York. Marsh was owing Eing & Smith, and upon the acceptance of said draft, they were to credit him with the amount. It is fairly inferable from the testimony, either that this draft was accented, and notice thereof given to Eing & Smith, prior to the levy, or that they, prior to that time, gave Marsh credit for the amount thereof upon their books. Under this testimony, the court instructed the jury: “ First. That the assignment of a warehouse receipt in blank, is, in law, presumed to have been made and delivered to the holder of the same, on the day when the original receipt was executed, and this presumption must be rebutted by positive testimony. Second. That where goods are left with a warehouseman, who gives his [53]*53receipt for the same, tbe sale of tbe goods, and tbe assignment of the warehouse receipts, and delivery of them to tbe purchaser, is a delivery of tbe goods.” Inasmuch, as tbe testimony sufficiently shows when, in fact, tbe warehouse receipts were assigned, and that such assignments and delivery were prior to tbe levy of tbe attachments, it is unnecessary to consider whether tbe first instruction, as an abstract proposition, is or is not correct. To ascertain tbe time of tbe transfer, tbe jury bad sufficient evidence, without resorting to tbe legal presumption that they were assigned on tbe day of their date. And should we even conclude, that tbe instruction was erroneous, tbe case would not, for that reason, be reversed, for it would be, at most, but an error without prejudice to tbe party complaining. Hayden v. Plummer, 2 Hill, 205; Atkinson v. Lester, 1 Scam. 407; U. S. v. Wright, 1 McLean, 509; Rhett v. Poe, 2 How. 457.
Tbe appellants insist, that tbe second instruction is in conflict with tbe ruling of this court, in tbe case of The Merchants and Mechanics' Bank of Chicago v. Hewitt, 3 Iowa, 93. That was a suit by tbe assignee of a warehouse receipt in bis own name, against tbe maker, to recover tbe value of certain corn therein named. Tbe defendant plead as a set-off, a claim against tbe original bolder of tbe receipt, as well as some other defences. Tbe question was, whether such a receipt was negotiable, so as to deprive tbe maker thereof of any legal or equitable defence, against tbe assignee, which be would have bad, if tbe suit bad been brought by tbe assignor or original bolder. And did tbe question in this case, arise between tbe plaintiff or tbe assignee of these receipts and tbe .warehouseman, that case would be applicable. In that case it was held, that such a receipt might be assigned, so as to authorize tbe assignee to sue in bis own name, but' that tbe assignee took tbe same, subject to all tbe equities existing between tbe maker and assignor, before notice to tbe maker of tbe assignment. Here tbe question, however, is wffietber tbe assignment and delivery of tbe receipts, and the goods therein named, is a sufficient delivery of tbe goods, as against creditors, there being no notice prior to said levy, [54]*54of such assignment, either to the warehousemen or the creditors. Appellants rely upon Gibson v. Stevens, 3 McLean, 551. The opinion of Judge McLean, in that case, recognizes a different rule from that laid down by the District Court in this. That was taken, however, to the Supreme Court of the United States, and reversed, and this second instruction accords with the unanimous opinion of that tribunal. 8 Howard, 384. See also Conard v. The Atlantic Insurance Co., 1 Peters, 445; 2 Kent, 500; Wilkes & Fontaine v. Ferris, 5 Johns. 335; Story on Sales, § 311; Gardner v. Howland, 2 Pick. 599.
The third error assigned, relates to the refusal of the court, to allow defendants to propound the following questions to Atherton : “ While Boyd, Marsh & Wright, were in possession of the goods, and on or about the 1st of January, 1854, did they or not agree to send the goods in question, over the river to Sabula, in Iowa, to be out of the way of their creditors, or the creditors of Boyd ?” The plaintiff insists, that the 'interrogatory was leading, and for that reason, was correctly held to be improper by the court below. It does not appear, however, that any such objection was made in the court below, and we are unwilling to allow such an objection to be valid, unless it was made at the time the question was asked, and an opportunity given to the party putting the question, to propound it in the proper form. The objection is, at most, but a technical one, and when made, is so easily obviated, that it cannot avail in this court, unless it appears to have been made in the court below. The question is, then, whether the testimony sought to be elicited was proper. Eor the p urpose of proving fraud in the alleged sale by Marsh to plaintiff, the testimony was, of course, improper, unless it was shown that plaintiff had knowledge of such agreement, and of the purpose of the partners in thus sending the goods into Iowa. A fraudulent intention on the part of these partners, or on the part of Marsh, (of whom plaintiff claims to have purchased,) would not make the sale void, unless it was further shown that plaintiff participated in such fraud.
[55]*55Eor other purposes, however, we think the testimony was proper. It is evident from all the testimony, that it was claimed on the one hand, that the partnership of Boyd, Marsh & Wright, was dissolved long before the sale to plaintiff, and that at the time of the sale, Marsh owned the entire stock; while on the other hand, it is insisted that Marsh was not, at the time, the sole owner. The plaintiff also insists that these goods were sent over the river after he had bought from Marsh, to be deposited in certain warehouses, until the draft was accepted, as heretofore stated. Now, if it could be shown, that after the alleged dissolution of this partnership, and after the alleged sale to plaintiff, the three partners were together, and treated these goods as their own, it would certainly tend to rebut the idea that they had previously dissolved, or that Marsh alone owned, or had a right to sell the goods. So, also, if the goods were sent into this state under this agreement, it would certainly tend to negative the claim that they were forwarded as Marsh’s, under the arrangement set up by plaintiff. . We, therefore, think this question should have been allowed to be put and answered. How far the answer to it, if in the affirmative, might tend to satisfy the jury that the goods were not the property of the plaintiff, it is not for us to inquire. It is sufficient to say, that if answered in the affirmative, it would tend to show that the partnership still continued, and that the goods were sent over the river, and left with the warehousemen, for a purpose other and different from that relied upon by plaintiff.
Judgment reversed.