Alden v. Marsh

Chapman, J. The fact that Hibbard was intemperate in his habits, and neglected his business, would be competent evidence having some tendency to prove that the firm was insolvent. It tended to prove the existence of a cause of which insolvency would be the natural and probable effect. In some cases such evidence might be very slight; but the jury would be the judges 163 of its weight. The fact that the plaintiff lived near by, that he had known Hibbard during his whole residence in Springfield, and was in the habit of being in and out of his store and of having his clothes made there, would be competent evidence, in connection with the other evidence in the case, having some tendency to prove that he had knowledge of Hibbard’s habits. Its weight would depend upon particular circumstances, and it would be weighed by the jury. It should have been admitted. Simpson v. Carleton, 1 Allen, 109. Bartholomew v. McKinstry, 6 Allen, 567. But it was properly left to the jury to determine whether the mortgage to the plaintiff was made in the usual and ordinary course of business, and whether the plaintiff had reasonable cause to believe it was intended to be made in fraud of the insolvent law. As the plaintiff was not a preexisting creditor, it was not made for the purpose of giving him a preference ; and as it was professedly made by Hibbard to enable him to meet bills which were coming due, and which he could not meet without crowding his customers more than he wished to do, we cannot judicially see that there was any thing in it of an unusual character, or calculated to excite suspicion in the mind of the plaintiff. It is unlike the case of Nary v. Merrill, 8 Allen, 451. The first exception must be sustained; and the second overruled.