Odiorne v. Bacon

The opinion of the court (Fletcher, J. not sitting in the cause) was delivered by Wilde, J. This is an action of slander, at the trial of which several exceptions were taken to the rulings of the presiding judge, and to the instructions given to the jury. The first exception was to the admission of the evidence, offered by the defendant, to prove the charge complained of in the first three counts of the declaration, that the plaintiff and his partner were insolvent debtors; and that they had made a fraudulent sale of their property to one Kimball, an insolvent debtor, with the intention to cheat their creditors, in pursuance of a conspiracy for that purpose between them and Kimball. To prove the insolvency of Kimball, the original papers and the record of the proceedings before the judge of probate on Kimball’s two petitions, as an insolvent debtor, were offered as competent evidence of his insolvency, and they were admitted accordingly. It is objected, that these proceedings were res inter alios; that the insolvency of Kim-ball was an immaterial fact, and if otherwise, that the attested copies of the record should have been produced; such copies being made primd facie evidence of the facts therein stated, by the statute of 1838, c. 163, § 14. Neither of these objections appears to the court to be well founded The fact of Kimball’s insolvency might be material, in determining the question whether the sale to him was bond fide or fraudulent. We certainly cannot decide that it was not, for the other evidence as to this question is not reported ; but it was such, that the plaintiff’s counsel, before the arguments to the jury, stated that he should not contend, that the sale by the plaintiff to Kimball was not intended to prevent creditors from attaching the property sold, and thus in the eye of the law was fraudulent.* If, then, the insolvency of Kimball was immaterial, the proof of it could not prejudice the plaintiff; for it could have no bearing on any other [190] question than that of the fraudulent sale. On that question, however, it had some bearing, and so was not immaterial. On no ground, therefore, can this objection be sustained. So we can have no doubt, that the original record of the proceedings before the judge of probate was competent evidence. The register of probate might have refused to produce the record, but it was produced voluntarily by him ; and certainly the original record, verified by him, is equivalent to a copy thereof attested by the same recording officer. It was therefore competent, as primá facie evidence, although not conclusive, as the plaintiff was not a party to the proceedings. Brooks v. Daniels, 22 Pick. 498. Another objection was made to the testimony of a witness called by the defendant, who was allowed to testify as to the acts and declarations of Kimball. This evidence would have been inadmissible, had not previous evidence been given, satisfactory to the presiding judge, of the conspiracy alleged in the defence, between the plaintiff and1 his partner, Ashcroft, and Kimball, to cheat certain creditors of the partners, by a fraudulent sale of their property. The evidence is not fully reported, but enough is reported to make it appear, that evidence tending to prove such conspiracy had been introduced, and it was on this ground, undoubtedly, that the acts and declarations of Kimball were allowed to be proved ; for the rule of evidence on this point is exceedingly familiar. The insolvency of Kimball, proved by the record, had some tendency to prove a conspiracy to make a fraudulent sale, as already remarked; and before the evidence objected to was admitted, Ashcroft, who was called as a witness by the plaintiff, testified, that when he sold his interest to Kimball, he was informed by him of his insolvency. Whether this evidence was sufficient to prove Kimball’s insolvency, is a question which is not raised by the exceptions. If the opinion of the judge, presiding at a trial, upon the evidence of a fact, is liable to exception, the objection to the opinion should be distinctly stated at the trial; and it should appear by the report, that all the facts having any bearing on the objection are therein stated. As this does not appear, it [191] is not necessary to decide the question, whether the opinion of the presiding judge is liable to exception, on the ground of the insufficiency of the evidence to prove the alleged conspiracy. If, however, the question was required to be decided, it would be difficult, I apprehend, to maintain an exception to the judgment of a judge, upon the weight of evidence to prove a fact relating to the competency of a witness, as in the present case. Another exception was taken to the ruling of the judge, whereby, as the plaintiff’s counsel contend, his right of cross-examination of one of the defendant’s witnesses was illegally abridged. The witness was asked by the plaintiff’s counsel to state again in detail, without referring to his minutes, what Ashcroft testified at a former trial; and the judge ruled that the witness should not be required so to restate his testimony. No exception to this ruling, in our judgment, can be sustained. The judge had a discretionary power to regulate the examination of witnesses, and his rulings in such cases are not liable to exception. As to the instructions to the jury, we find nothing to support the exceptions. The jury were instructed, that if the) were satisfied, that the sale from the plaintiff to Kimball was made for the purpose of preventing creditors from attaching the property sold, it was fraudulent in law, and warranted the defendant in applying to it the epithets of cheating and swindling. It is objected, that there was no moral fraud proved or admitted; but in relation to the question in this case, there is no distinction between a legal and a moral fraud. We have no doubt, that the instructions to the jury Were sufficiently favorable for the plaintiff. Exceptions overruled. Footnotes [*] See Kimball v. Thompson, 4 Cush. 441, 446.