Jesse v. Kilburne

The opinion of the Court was by Sheplev J. It has been decided in the recent case of Philbrook v. Handly, ante p. 53, that the debtor is a competent witness, so far as it respects his interest in the event of the suit, for the creditor, in a case like the present. It is further insisted in this case, that the debtor, Ball, was incompetent, because he had given an entirely different account of the transaction between himself and the defendant, in his petition to be declared a bankrupt, under the sanction of an oath. In the course of judicial investigations, witnesses are found to testify differently, on different occasions and at different times. Sometimes because they have ascertained, that they had made a mistake in their former testimony. At other times they exhibit a disposition to suit their testimony to the exigencies of the case. And on other occasions they acknowledge, that they were induced to testify falsely at a former time. In no such case can the question of the competency of the witness to testify properly arise, for it cannot be judicially known, how far his testimony may conform to, or differ from his former testimony. If it could be known, so that the objection to his competency could be presented, it must be overruled, for it is the peculiar province of the jury in an action at law, to decide, whether the testimony of a witness should be entitled to any, and if so, to what credit under the circumstances, — 262 — in which it is presented to them. Burgess v. Bosworth, 23 Maine R. 573. Nor can the objection to his competency on the ground, that he appeared to be the principal actor in the fraudulent transfer of his property, prevail. A particeps criminis is a competent witness in a prosecution for the crime, and a particeps fraudis in a civil action to recover for the injury occasioned by it. Bean v. Bean, 12 Mass. R. 20. The next objection is, that Ball was permitted to testify, that two promissory notes and an account produced, were due from him to the plaintiff. The books of the plaintiff accompanied by his testimony respecting the original entries, would, it is said, have been better evidence to prove the account. But the testimony of one who is a party to, and solely interested in the event of the suit, corroborated by entries in his book, cannot be regarded as better evidence, than the testimony of one who must, in that particular testify directly against his own interest. If the witness be worthy of confidence, to be reposed in his veracity, there can be no more certain or better evidence, that a promissory note, or an account produced and purporting to be due from him, is in fact due. Exception is taken to the exclusion of a part of the deposition of John E. Stacy, on the ground that the statements made by Ball to him, were privileged communications made by a client to his attorney. Mr. Stacy testifies, that they were made in a conversation between him and Ball respecting a suit, in which he had been previously retained, then pending in Court, in the name of Otis against Ball. Some portions of that conversation do not appear to have been material, or necessary to the defence presented in that suit. But whether they must be regarded as matters of professional confidence, and therefore privileged communications, does not depend upon their importance or materiality in the defence of that suit. If it did, the confidence so essential between client and attorney, would be greatly impaired, if not destroyed. For the client cannot be expected to be fully informed how far many matters communicated may be important or material. Nor can he — 263 — reasonably be expected to decide and to be governed by suck considerations in making his disclosures, his object being, to communicate every thing in any way appertaining to the transaction, that his attorney may be liable to no surprise. The character in which those communications were made and received, and not their relevancy or materiality to -the defence of that suit, must therefore decide, whether they should be regarded as privileged or not. Lord Brougham, in the case of Greenough v. Gaskell, 1 Mylne and Keene, 98, examines many of the decided cases, and comes to the conclusion, “ that matters committed to attorneys, solicitors, and counsel, in their professional capacity, and which but for their employment as professional men, they would not have come to be possessed of, ” are not to be disclosed by them. Mr. Greenleaf in his treatise upon evidence, § 240, states the result of an examination to be, that “ this protection extends to every communication, which the client makes to his legal adviser for the purpose of professional advice or aid upon the subject of his rights and liabilities.” In a conversation somewhat desultory, as in this case, between client and attorney, it may not always be easy to determine the purpose, for which certain communications were made. When, however, they appear to have been made, while the parties were manifestly speaking and listening in that character, it is reasonable to conclude, that they were made for the ostensible purpose ; and it would tend to impair the necessary confidence, if a different inference were drawn. The remarks of Ball, as related in the deposition of Stacy and excluded, appear to have been made in the character of a client speaking to his attorney as such; and according to the rules before stated, they were properly excluded. Such communications are not excluded on account of a privilege, which an attorney may waive because it is a personal one, but on account of a privilege attached to the communication for the better administration of justice, and which can only be separated from it, by the consent of the client. It is further contended, that a judgment creditor only can maintain an action on the forty-ninth section of the statute, c. — 264 — 148. Such a construction cannot be admitted ; the language will not authorize it. It makes one liable for aiding “ any debtor,” not a judgment debtor only, in the fraudulent concealment or transfer of his property “ to secure the same from creditors” without distinction of class; and to prevent the seizure of the same by attachment or levy on execution. The word attachment, on such a construction, would be inoperative in all those cases, in which the suit was not commenced upon a judgment already recovered. And the provision would be useless, when any other than a judgment creditor had been prevented from obtaining payment by reason of the assistance afforded to his debtor in making a fraudulent transfer of his property. There is no indication of such an intention in the enactment of that provision of the statute. Another exception is taken to the refusal of the District Judge to instruct as requested upon the facts proved. It appeared in testimony, that Ball, without any consideration therefor, made five promissory notes of one hundred dollars each, payable to the defendant, and conveyed to him certain lands to secure the payment of them. The notes and mortgage were dated April 16, 1842, but were in fact made on the nineteenth day of the same month and subsequent to an attachment, made on that day, of the same premises on a writ in favor of Oliver Otis against Ball. Otis having deceased, the administrator on his estate recovered judgment in that suit, and on July 6, 1846, caused a levy to be made upon the premises conveyed in mortgage to the defendant. The presiding Judge was requested to instruct the jury, that such proceedings would be a bar to this action. This he refused to do. It is now contended, that no fraudulent concealment or transfer of the property of Ball, was exhibited in the proof of that transaction between him and the defendant; because the levy deprived Ball of all title to the mortgaged premises from the date of the attachment. The title to an estate attached remains in the owner subsequent to the attachment, and he may legally convey it subject to be defeated, should the plaintiff in such suit recover judgment and pursue such a course as would — 265 — give him a superior title. A debtor may therefore transfer an estate under attachment to secure it from further attachment or from seizure on execution; and one who knowingly aids him to do it violates the provisions of the statute. It is also said that the jury cannot ascertain, as they must do, the value of an estate transferred, when it appears to have been taken from the debtor, or his grantee, by virtue of a prior attachment. Our statute not only contemplates, that an estate may be of value while subject to an existing attachment, but that it may be also, after a levy has already been made upon it according to an appraised value, c. 94, § 43. At the time of the trial the defendant appears, by his conveyance in mortgage, not only to have held the right to redeem the premises from the levy made by the administrator of Otis, but to have been entitled to call upon Ball, for a breach of the covenants of that deed. The statute, however, does not require, that it should be made to appear, that the person who knowingly aids a debtor in the fraudulent concealment or transfer of his property, should derive a benefit therefrom to make him liable to the action of the creditor. All fraudulent transfers being void as against creditors, the person taking such a conveyance may be deprived of the property, so conveyed, by one creditor, after he has been compelled to pay the value of it to another creditor of the same debtor, whom he has knowingly aided in the transfer of it. He is made liable, not because he has received property from the debtor by a fraudulent transfer, but because he has knowingly aided a debtor in the commission of fraud with a design to injure his creditors. One, who thus aids a debtor to make a transfer to a third person, comes as fully within the provisions of the statute, as he would do, if such transfer had been made to himself. And one, who knowingly assists the debtor in the fraudulent concealment of his property, to prevent its being attached or seized on execution, is liable to the action of a creditor, although the debtor may never have partf*L with the legal title to the property. T*-P jury found, in answer to certain questions submitted to — 266 — them, that no personal property was transferred; and that finding, it is insisted, must include the mortgage made by Ball to the defendant, so that no judgment can consistently be -entered against him. It might be a sufficient answer to this ■ objection to say, that no such question is presented by this bill ■ of exceptions. The jury have found a fraudulent transfer of ■ property by that conveyance in mortgage, and whether they • correctly designated the kind of property may not be very .<material. While a mortgage of real estate may before fore- • closure be regarded as a pledge, security for the payment of money, or chose in action passing to the executor and not to the heir, it is still a conditional conveyance of an estate; and the ¡rules of law respecting fraudulent conveyances are applicable to it. Exceptions overruled.