Morse, J.
In this case the plaintiff, a resident of' Zanesville, Ohio, claims to have exchanged a farm in Delaware county, in that state, for a stock of goods owned by Harvey Cockell, at Mears, in Oceana county, Mich. The contract between the parties will be found in the opinion filed by the Chief Justice. It is an unusual one in some respects, and it is noticeable that the agent ■of Buckingham delivered his deed of a farm valued at-$17,800 to Mr. and Mrs. Cockell for a stock of goods 1m had never seen, and to parties of whose responsibility he knew little or nothing, before the key of the store was delivered to him, and before the goods had been inventoried by him, or any one in his behalf; and by the contract, if the goods in the store, of which lje knew nothing save from the representations of Cockell, did not invoice at their true value to the amount of $17,800, then the Cockells were to pay Buckingham the deficit in stock at a fair cash value, or notes.
[103]*103After the deed was delivered, and the key of the store-passed over to plaintiff’s agent, one Thomas, but before the goods had been removed, though some of them were upon cars preparatory to being moved to Ohio, where Buckingham purposed to take all of them, certain creditors of Cockell, claiming the.sale of the goods or the transfer of them to Buckingham to be fraudulent as against them, procured writs of attachment, and the defendant, as sheriff, levied upon all the property thus transferred by Cockell to plaintiff. Buckingham brought this suit in trover to recover the value of the goods thus taken, and obtained a verdict in the circuit court for Oceana county.
I am satisfied that error was committed on the trial in the following respects:
First, it was claimed that Cockell, to show his good faith in the matter, expected to loan $7,000 or $8,000 of Buckingham by mortgage upon the lands purchased of him, but that, after the attachments were levied; Buckingham refused to make the loan. Buckingham was then asked:
“ What did Mr. Cockell tell you about having' tried to loan money on the farm?”
This was objected to as incompetent and immaterial, but an answer was permitted. It is claimed that this was proper, in order to show that CockeH was trying to raise money to pay his debts, and therefore did not make the trade with intent to cheat his creditors. This looks to me like an attempt to use the talk of the parties between themselves, after the contract between them was made, to corroborate their claim of good faith in the transaction. I know of no rule of law that permits this. If Cockell was trying to loan money of others upon his farm to pay his debts, it might be proper to show it by [104]*104sncli persons, or by himself; but the fact that he so stated to Buckingham was purely hearsay, and objectionable on that account, as well as incompetent, for the reason that it was using his own declarations, not a part of the res gestae, to show his good faith, and that of the plaintiff, in the transaction being inquired into. But, when this was admitted, we find the court afterwards ■refusing to allow the defendant to show, by the cross-examination of William Downing, Cockell's book-keeper, the indebtedness of Cockell at the time he made this transfer, which was certainly error.
To make the defense in this case two things were necessary:
1. To establish that Cockell disposed of these goods •with intent to hinder, delay, or defraud his creditors.
2. That Buckingham had such a knowledge of Cock-ell's indebtedness, and other facts surrounding the transaction, as would have been sufficient to put an ordinarily prudent man upon inquiry as to Cockell's intent in the transaction, or that he was knowingly a party to the fraud."'
Anything that Cockell said or did, before or at the time of the transaction, therefore, showing his intent to ■defraud his creditors, was admissible to support the first branch of the defense; and it was not necessary to its .admission for that purpose that it should have been said or done in Buckingham's presence or hearing. The fact of Cockell's fraud could not affect Buckingham, if he was ignorant of it; but such fact, if established, was competent in the case, to be weighed with other circumstances in the case, to determine whether or not Buckingham was a party to it, or had such knowledge that he was put upon inquiry as to the good faith of Cockell in making the transfer. Buckingham could not be allied with any fraud of Cockell, unless such fraud existed; and therefore it was competent to establish it, as an independ[105]*105■ent fact in the case, to be used in arriving, under proper instructions from the court, at the main fact in the case, to wit: The connection of Buckingham with such fraud, •or with such knowledge of it as made him responsible for it, and avoided the transfer of the goods to him.
In this connection it may be said that the evidence •offered by defendant of a conversation between Cockell and a witness for the defendant was not admissible, as it took place after the transfer of the goods, and was not in the presence or hearing of Buckingham. It was not a part of the res gestee. But, 'while properly rejecting this testimony, the court permitted Mr. Ambler to testify, against the objection of the defendant, that Cockell told him, after the tranfer, and after the attachments were levied, that Buckingham had agreed, at his request, to loan him $3,000 to pay the attachments on the stock, and when he arrived from Ohio he found that the attachments amounted to more money than that, and that one of the attachments was unjust, as he did not owe the debt as claimed, and that, therefore, he could not take the money of Buckingham, and release the goods. This was open to the same objection as the proposed testimony of Gurney, only more so, and its admission was error.
It was also error to exclude the question put on cross-examination to plaintiff’s agent, Thomas, in reference to a conversation had by him in Rutherford’s office, when the plaintiff was present, about the first attachment levied on the goods.
I do not think the fact that, after this suit was commenced, the defendant tendered these goods to plaintiff, was admissible on the part of the plaintiff to show bad faith on the part of the defendant in making the levy, nor do I think what the creditors did about the matter was admissible as against him. The writs were valid on their [106]*106face,, and put in the hands of the defendant for service, and there was no evidence in the ca,se tending to show that defendant was actuated by any malice in the transaction. On the contrary, it would seem, from the record, that he was undertaking simply to perform his duty, as he understood it. But this was permitted to be shown by the plaintiff, and after opening up this matter of tender, and allowing him to testify that he refused such tender, the court would not permit defendant's counsel to ask him why he so refused. If the matter of the tender and refusal was in the case, it was error to exclude this inquiry.
The fact of this tender was introduced in support of a theory raised on tho trial that the attending creditors and' the sheriff knew that the transfer of the goods was an honest one, and that the attachments were levied for vexatious purposes, and to compel Buckingham to pay Cockell's debts.
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Morse, J.
In this case the plaintiff, a resident of' Zanesville, Ohio, claims to have exchanged a farm in Delaware county, in that state, for a stock of goods owned by Harvey Cockell, at Mears, in Oceana county, Mich. The contract between the parties will be found in the opinion filed by the Chief Justice. It is an unusual one in some respects, and it is noticeable that the agent ■of Buckingham delivered his deed of a farm valued at-$17,800 to Mr. and Mrs. Cockell for a stock of goods 1m had never seen, and to parties of whose responsibility he knew little or nothing, before the key of the store was delivered to him, and before the goods had been inventoried by him, or any one in his behalf; and by the contract, if the goods in the store, of which lje knew nothing save from the representations of Cockell, did not invoice at their true value to the amount of $17,800, then the Cockells were to pay Buckingham the deficit in stock at a fair cash value, or notes.
[103]*103After the deed was delivered, and the key of the store-passed over to plaintiff’s agent, one Thomas, but before the goods had been removed, though some of them were upon cars preparatory to being moved to Ohio, where Buckingham purposed to take all of them, certain creditors of Cockell, claiming the.sale of the goods or the transfer of them to Buckingham to be fraudulent as against them, procured writs of attachment, and the defendant, as sheriff, levied upon all the property thus transferred by Cockell to plaintiff. Buckingham brought this suit in trover to recover the value of the goods thus taken, and obtained a verdict in the circuit court for Oceana county.
I am satisfied that error was committed on the trial in the following respects:
First, it was claimed that Cockell, to show his good faith in the matter, expected to loan $7,000 or $8,000 of Buckingham by mortgage upon the lands purchased of him, but that, after the attachments were levied; Buckingham refused to make the loan. Buckingham was then asked:
“ What did Mr. Cockell tell you about having' tried to loan money on the farm?”
This was objected to as incompetent and immaterial, but an answer was permitted. It is claimed that this was proper, in order to show that CockeH was trying to raise money to pay his debts, and therefore did not make the trade with intent to cheat his creditors. This looks to me like an attempt to use the talk of the parties between themselves, after the contract between them was made, to corroborate their claim of good faith in the transaction. I know of no rule of law that permits this. If Cockell was trying to loan money of others upon his farm to pay his debts, it might be proper to show it by [104]*104sncli persons, or by himself; but the fact that he so stated to Buckingham was purely hearsay, and objectionable on that account, as well as incompetent, for the reason that it was using his own declarations, not a part of the res gestae, to show his good faith, and that of the plaintiff, in the transaction being inquired into. But, when this was admitted, we find the court afterwards ■refusing to allow the defendant to show, by the cross-examination of William Downing, Cockell's book-keeper, the indebtedness of Cockell at the time he made this transfer, which was certainly error.
To make the defense in this case two things were necessary:
1. To establish that Cockell disposed of these goods •with intent to hinder, delay, or defraud his creditors.
2. That Buckingham had such a knowledge of Cock-ell's indebtedness, and other facts surrounding the transaction, as would have been sufficient to put an ordinarily prudent man upon inquiry as to Cockell's intent in the transaction, or that he was knowingly a party to the fraud."'
Anything that Cockell said or did, before or at the time of the transaction, therefore, showing his intent to ■defraud his creditors, was admissible to support the first branch of the defense; and it was not necessary to its .admission for that purpose that it should have been said or done in Buckingham's presence or hearing. The fact of Cockell's fraud could not affect Buckingham, if he was ignorant of it; but such fact, if established, was competent in the case, to be weighed with other circumstances in the case, to determine whether or not Buckingham was a party to it, or had such knowledge that he was put upon inquiry as to the good faith of Cockell in making the transfer. Buckingham could not be allied with any fraud of Cockell, unless such fraud existed; and therefore it was competent to establish it, as an independ[105]*105■ent fact in the case, to be used in arriving, under proper instructions from the court, at the main fact in the case, to wit: The connection of Buckingham with such fraud, •or with such knowledge of it as made him responsible for it, and avoided the transfer of the goods to him.
In this connection it may be said that the evidence •offered by defendant of a conversation between Cockell and a witness for the defendant was not admissible, as it took place after the transfer of the goods, and was not in the presence or hearing of Buckingham. It was not a part of the res gestee. But, 'while properly rejecting this testimony, the court permitted Mr. Ambler to testify, against the objection of the defendant, that Cockell told him, after the tranfer, and after the attachments were levied, that Buckingham had agreed, at his request, to loan him $3,000 to pay the attachments on the stock, and when he arrived from Ohio he found that the attachments amounted to more money than that, and that one of the attachments was unjust, as he did not owe the debt as claimed, and that, therefore, he could not take the money of Buckingham, and release the goods. This was open to the same objection as the proposed testimony of Gurney, only more so, and its admission was error.
It was also error to exclude the question put on cross-examination to plaintiff’s agent, Thomas, in reference to a conversation had by him in Rutherford’s office, when the plaintiff was present, about the first attachment levied on the goods.
I do not think the fact that, after this suit was commenced, the defendant tendered these goods to plaintiff, was admissible on the part of the plaintiff to show bad faith on the part of the defendant in making the levy, nor do I think what the creditors did about the matter was admissible as against him. The writs were valid on their [106]*106face,, and put in the hands of the defendant for service, and there was no evidence in the ca,se tending to show that defendant was actuated by any malice in the transaction. On the contrary, it would seem, from the record, that he was undertaking simply to perform his duty, as he understood it. But this was permitted to be shown by the plaintiff, and after opening up this matter of tender, and allowing him to testify that he refused such tender, the court would not permit defendant's counsel to ask him why he so refused. If the matter of the tender and refusal was in the case, it was error to exclude this inquiry.
The fact of this tender was introduced in support of a theory raised on tho trial that the attending creditors and' the sheriff knew that the transfer of the goods was an honest one, and that the attachments were levied for vexatious purposes, and to compel Buckingham to pay Cockell's debts. In support of the same theory, the plaintiff was permitted to introduce affidavits for continuance made by the defendant, his attorneys, and others in the case. This was also error. The only effect and possible purpose of introducing these affidavits was to prejudice the jury against the defendant, and should not hate been permitted.
The defendant did not have a fair trial of the real issue in the case. The conduct of the case was such, and the rulings of the court, that the creditors and sheriff were put on trial for fraud; and the question of good faith of the plaintiff and Cockell in the transfer of the goods seems to have been lost sight of and obscured, and this must have affected the verdict in the case.
The court also erred in instructing the jury that it was for the defendant to show, by a fair preponderance of the testimony, that the title to these goods had not passed by a completed sale from Cockell to Buckingham [107]*107at tbe time they were seized under the attachment writs, in order to defeat the plaintiff’s action, unless fraud was shown. The plaintiff sued as the owner of these goods, and the burden was upon him to show that, at the time the sheriff levied upon them, the sale or transfer of the goods had been completed, and the title passed. This question was in issue, as well as the matter of fraud, and the error was therefore a vital one.
The judgment of the court below must be reversed, with costs, and a new trial granted.
Champlin and Long, JJ., concurred with Morse, J.