Magee v. Raiguel

The opinion of the court was delivered, by Read, J. — The declarations of a creditor before the assignment of a debt are clearly evidence, and so where there is an attachment execution, the declarations of the owner of the debt or goods attached made prior to the issuing of the attachment may be given in evidence. This is the general rule, and if they are to be excluded in certain excepted cases, then the offer of the evidence must appear affirmatively to be brought within them. The offer in the case before us was to prove a declaration of the defendant before the issuing of the plaintiff’s attachment, and to reject it was error, although upon examination of the witness it might have turned out to be inadmissible from circumstances not stated in the offer. In French v. Breidelman, 2 Grant’s Cases 319, Judge Lowrie, delivering the opinion of the court, said “ The Execution Act of 1836, sec. 35, allows an execution attachment to issue to reach debts due to the defendant, or deposits of money made, or goods pawned pledged, or demised by him; and the main question of the present cause is, is this an appropriate writ under the Act to the case of a sale of a store of goods, in fraud of creditors, where the fraudulent vendee has sold part, and has the rest on hand. We think it is.” In Tams v. Richards, 2 Casey 97, the same learned judge said: “It is certainly very plain that the service of the execution attachment on William Tams rendered him liable to account to that execution creditor for all the property of John Tams, which he had then obtained in fraud of creditors, up to the amount of that creditor’s claim. It would be no defence to William Tams that he had lost a part of the property or intrusted it to the care of others or sold it, and had not yet received payment. That he had received it in fraud of creditors was a sufficient basis for the demand, that he should deliver it up or account to them for the value of it.” This is sound doctrine, and we do not intend to disturb it, but we do not think the observation of the learned judge, in his answer to the defendant’s seventh point, comes within the rule of these cases. It assumes that there was a debt due from the defendant to Magee, and that the goods attached were received by him in payment thereof, but that if Magee’s conduct was calculated to put creditors off their guard as to the defendant’s goods, he was guilty of fraud, and the garnishees should not be entitled to credit [113] for these goods. This cannot be the law, and we are inclined to think there was some misapprehension in the hurry of the trial, or that the meaning of the learned judge has not been very clearly expressed. Judgment reversed, and venire de novo awarded.