Helser v. McGrath

The opinion of the court was delivered, May 20th 1868, by Thompson, C. J. We need not review at length the able and careful argument of the learned counsel for the plaintiff in error made to prove that the declarations of one of two or more persons charged with combining or conspiring to defraud another or others, are not evidence against the absent party or parties, until some evidence of combination for the purposes charged be given; or that declarations made long after a transaction has taken place and is closed are generally inadmissible. Neither of these objections meets the true position, of the case in hand, under the evidence. If there ever was a combination to cover Myers’s property, it continued and existed at the time the declarations .offered to be proved, were made. This was the defendant’s theory, and the testimony certainly favored it. The connection between Helser and Myers took place in 1854, after an alleged sale by the latter to the former, of a small stock of goods he had at Mill Stone Point, in Maryland, [461] which was united with a stock the plaintiff afterwards purchased from the administrator of Eichelberry, and the two stocks thus united were afterwards kept by Myers in the storehouse of Eichelberry in the name of Helser. Myers was insolvent at the commencement, and so continued. Repeated declarations of Helser were given before and after the offer, which is the subject of the first exception made, to the effect that the store, from the proceeds of which the rye in question was purchased, belonged to Myers; that he (Helser) was trying to help him; that the rye was Myers’s, &c., &c. This cleared the way for Myers’s declarations. There was therefore, we think, sufficient evidence of combination to go to the jury, and .the testimony was receivable. The defendant insisted that the original design, viz.: the protection of Myers against his creditors, still existed, and the combination continued. The testimony was very strong to this effect. The court was therefore entirely right in the admission of the testimony. Upon the same principle the answer of the court to the plaintiff’s 3d point was faultless, and the same must be said in regard to that portion of the charge of the learned judge which constitutes the 3d assignment of error. The judgment must be affirmed, no error appearing on the record. Judgment affirmed.