Bryce v. . Butler

Reade, J. In order to prove that the defendant “ aided and assisted Groot to remove from the State, to defraud the creditors of said Groot,”-of whom plaintiff-was one, the plaintiff offered in evidence the declarations of Groot, which were, as plaintiff alleged, to that effect. *588 Take it to be that the declarations were to that effect, plainly or in so many words, they were clearly incompentent upon very plain principles. Admitting that plain principle, the plaintiff says he takes his case out of the general rule that heresay is not evidence, by having, by other evidence, proved a complicity between Groot and the defendant; and then, what one said was the same as if said by the other. That is a plain principle also. But it is equally plain that the declarations cannot be used to establish the complicity. And here it is expressly stated that the declarations were offered “ further to prove complicity,” &c. The declarations offered were contained in a postscript to a letter from Groot to the plaintiff The defendant objected to the letter as evidence, the case states, but his Honor permitted the plaintiff’ to read the body of the letter, which was unimportant, and ruled out the postscript which contained the declarations which the plaintiff desired to introduce. And then the plaintiff says, that having been permitted to read a part, that is, the body of the letter, he ought to have been permitted to read the whole, upon the principle that when a part of a declaration, or conversation, or transaction is given, the whole must be. That principle is usually applied when one party introduces a part and leaves out a part; the other party is entitled to call for the whole. But here the letter and postscript were offered by the plaintiff; and it is a perversion of the principle to say that because he got in a part which was irrelevant, that entitled him to put in the remainder which wasincompetent; when, under the objection of the defendant, the whole was incompetent. Another view is presented by the plaintiff: When the fact of complicity is established by other evidence, then the declarations of one are evidence against the other. And when the complicity is established, so as to let in the declarations, is a primary question to be decided by his Honor ; and his decision cannot be reviewed; and that here he must have decided the complicity to be established, else he *589 would not have permitted the letter to be read. This argument is fatal to the plaintiff who uses it; for the fact that he allowed the body of the letter which was immaterial to be read proves nothing, but the fact that he rejected the postscript which was important and was clearly competent if the complicity had been established, proves that his conclusion was, that the complicity was not- established. And so, if the plain7 till’s position is correct, that his Honor’s decision of the primary question cannot be reviewed, then, just as we could not review it if in favor of the plaintiff, as he supposes, so we cannot review it if it be against him, as we have to suppose. There is no error. Pee CueiaM. Judgment affirmed.