Field, J. concurring.

Trespass against the Sheriff for seizing plaintiff’s grain.

Defendant justified by process against one Dennis, and a claim that this was his property, or subject as his to the writ. The question was, whether there was fraud in a sale of this grain by Dennis to the plaintiff, and this question depended upon conflicting proofs.

1. The assignment of error which assails the refusal of the Court to grant a new trial, therefore, is not sustained.

2. There was a previous trial. Verdict and judgment for the plaintiff were had, which judgment was reversed in this Court. The Court below refused the motion of defendant to exclude the costs of this first trial from the bill of costs. We see no error in this refusal. Mo authority has been cited to show that it was the duty of the Court to allow the motion; and we think the law and the practice are the other way.

3. Some instructions given by the Court on the trial were lost or mislaid before the motion for a now trial was heard; and upon this ground the defendant moved to suspend the hearing of the motion until they should be found, and also to grant a new trial on account of the loss. The Court refused the motion.

The Judge must settle the statement. He is presumed to ' know what instructions he gave the jury. The best evidence is, undoubtedly, the written charge; but, if that is out of the way, other evidence, or his own memory, may be resorted to to enable him to make known the instruction. But we cannot receive evidence otherwise than through his statement or the record; and, if we could, the Appellant has not furnished it.

4. It is assigned as error that the Court refused to charge the jury that, after a sale of personal property by a vendor, the possession of the vendee must be exclusive and continued as against the vendor; and if the vendor remained in possession, in conjunction and in common with the vendee, then the sale is absolutely void. We do not so understand the law. The sale is *61 good as between the parties, whether possession be deliverd or. not; and only void as to creditors and subsequent purchaseVsT A Court is not bound to give an instruction upon its face erroneous, though the error might not be sufficient to reverse the judgment if the charge were given. The error may be excused in some cases, on the ground that no injury was done; but the Court is never bound to charge bad law. PTor can we say that so broad a proposition had not a tendency to mislead the jury. Moreover, it is not at all certain that the rule invoked applies to a case like this. Here, by the terms of the contract of 1854, Visher was to have possession of the crop, reimburse himself for expenses, etc. the remainder to be divided. By the last contract, of 31st May, 1855, Dennis sold all his right, title, and interest, by deed, in the crop then growing, to plaintiff; and it seems Visher, if he did not have it before, took all the possession of the crop, of which it was susceptible, even supposing that this grain, then growing, was a mere chattel. Unless some fraud appeared in this first contract, we do not well see how or when Dennis ever had any possession of this grain. ¡Nor do we see that any proof of possession of the grain itself, by Dennis, was made. The mere fact that he was on the premises, or in the occupancy of the house, shows no such possession in the face of a clear showing, by the deeds, that he had no right as against Visher.

5. The next error assigned is in excluding proof of Dennis’ declaration in respect to the title of the grain, or his half interest in it. These declarations were made after his sale. They could not, therefore, affect the title he had parted with. ¡Nor were they a part of the res gestae, for no such clear and unequivocal possession was shown as to admit them on this ground. Nor was it proper to rebut the testimony of Lombard and Putnam Visher, for this testimony could only rebut their statements by showing some interest or course of dealing with the property. This could be proved by his acts—and was—it could not by his mere admissions.

Judgment affirmed.