Butler v. O'Brien

COLLIER, C. J. Although the transcript contains a bond in due form, executed by the claimants and William C. Morgan, yet as this bond Wasmot brought to the view of the court, when the latter was offered .as a witness, we must consider the question of his competency upon the evidence of interest which was then shown to the court. In respect to the bond which was found in the file, bearing date in 1839, it must be placed entirely out of view, as it contains no intrinsic evidence of its having been sanctioned by the court, and the statement of the clerk affords a Strong presumption that the reverse is true. Taking the bond then,. which was executed simultaneously with the assertion of a claim of property by the plaintiffs in error, as the only source to which he can refer to ascertain the relation in which Morgan stands to the parties who introduced him; the question is, had he an inter-' est so direct in the result of the suit as to render him incompetent. By the eleventh section of the attachment act of 1833, it is pro-, vided that property levied on by that process may be claimed, and bond given to try the right of the same as in other cases, on which the same proceedings may be had as in trials of the right of property taken by virtue of a. fieri facias. And the bond for the trial of the right of property shall be lodged with the clerk, &c.; and should it become forfeited, the fact shall be indorsed thereon, and an execution issue against all the obligors therein, &c. The statute of 1812, provided for the trial of the right of property levied on by execution, where it was claimed by a third person, and required the claimant to execute two bonds ; one of which was to be conditioned as is the first bond executed by the claimant in this case, and payable to the sheriff; the other was conditioned for the forthcoming of the property. The act of 1828 modified the law in thisf-respect, and requires but one bond, embodying the conditions of both the others, which is payable to the plaintiff. It is conceded that the bond brought to our notice does not conform to the statute, but is variant in being made payable to the [321] sheriff, and conditioned to perform but one of the obligations required. There is then no pretence for regarding it as a statute bond, and the question is, can it be enforced at common law. In Hooe v. Tebbs, [1 Mumf. Rep. 500,] it was held, that a prison bounds bond, which was made payable to the plaintiff instead of the sheriff, and consequently void as a statute obligation, was notwithstanding, good at common law. And in Morse v. Hodsdon, et al. [5 Mass. Rep. 314,] the plaintiff in replevin gave his bond, with security, conditioned to prosecute his suit to final judgment, and recover the said goods; else the bond to be in full force. The condition prescribed by statute was, that the plaintiff should prosecute, and also malee return, and pay damages, if judgment be against him. In an action of debt upon this bond, it was determined that as it was voluntarily given, and the statute entitled the obligors to relief against the penalty, on the payment of the proper damages, they were no more prejudiced than if the condition had conformed to the law ; and not being declared void either by common law, or statute, the bond was good. [See also Justices v. Smith, 2 J. J. Marsh. Rep. 473; Hoy v. Rogers, 4 Monr. Rep. 225; Cobb v. Curtis, 4 Litt. Rep.] We might add many citations, tending to the same conclusion, but we will content ourselves with referring to the case of Sewall v. Franklin, et al. [2 Porter’s Rep. 493] in which the court, after noticing many authorities, says, “it .appears that bonds taken by civil officers, and in relation to judicial proceedings, though without the authority of our statute, (like bonds between individuals under other circumstances,) if they appear to have been given on valid and sufficient consideration, such as is neither illegal or immoral, may be good as common law bonds.” From these authorities it appears, that the bond in question, if the condition is forfeited, may be put in suit, and a recovery had against all the obligors. It is an undertaking on their part to pay all damages and costs which may be adjudged against the claimants ; and each of them is interested in preventing such a judgment. The interest is not indirect and remote, but is direct, and' an immediate consequence of a verdict and judgment adjudging the property subject to the plaintiff’s attachment Morgan then, according to the familiar rule, which declares one an incompetent witness who is interested in the event of the suit, was properly excluded by the circuit court [322] 2. It has been repeatedly held, where a third person claims property levied on by execution, and executes a bond for the trial of the right, that he shall not be permitted to object to the regularity of the judgment and execution, and that the plaintiff shall not be required to produce any evidence of the justice of Iris demand, other than the execution affords. We think the same rule must apply, where instead of an execution, the property is seised by an attachment. The only question to be litigated is, whether the goods claimed really belongs to the claimant or' not, as against the plaintiff, a creditor; for the purposes of this controversy, the plaintiff must be regarded as a creditor without the production of proof of indebtedness. The eleventh section of the attachment law, in providing for the trial of the right of property, and directing the same proceedings to be had as where a claim is interposed upon the levy of a fieri facias, together with the decisions which have been made touching the nature of such a controversy seem to us to show, not only that such evidence is unnecessary, but irregular. 3. It may be considered as a settled principle of law, that a transaction fraudulent, and consequently liable to be defeated by those who are prejudiced by it, may acquire validity by their subsequent confirmation with a knowledge of the facts. The approval need not be direct and express, but it may be implied from the manner of the dealing of the parties. In the present case, if the plaintiffs received of the defendant in part payment of the> debt they are seeking to recover, a note which the claimants gave the latter for the goods in controversy, having at the time a knowledge of the consideration, they would beheld to have approved the sale. The bill of exceptions does not recite any express proof of knowledge of consideration, but it states that the plaintiffs, after the levy of their attachment, received by the defendant in part payment of their debt against him, a note which the defendant had received of the claimants for the goods in controversy. The court when called on to charge that the plaintiffs must be held to have recognized the sale as valid, if they knew for what the note was given, does not treat the prayer as asking an instruction upon an abstract point. And although the evidence ofknowledge by the plaintiffs is. not as full as it could perhaps be desired, yet we think it such as warranted the charge prayed on this point. It cannot be supposed that every person who becomes the assignee' of a [323] note or other security for money, eo instanti, is informed of its consideration ; but in the case before us, the plaintiffs acquired the note, after their attachment was levied upon the goods, and the claimants had asserted the right to them as purchasers of the defendant. These are facts upon which the jury might inquire of the plaintiffs knowledge of the inducement to give the note. While the plaintiffs could not, consistently with reason, be considered as affirming the sale, unless they knew that the note was induced thereby, so on the other hand it would be exceedingly unjust if they possessed such knowledge, to allow them to appropriate the note to their own purposes, and also condemn the goods to pay the residue of their demand. If the sale of the goods was fraudulent, and intended to delay, hinder, &c. creditors, &c. the plaintiffs would subject them to their demand, unless they have impliedly sanctioned it; and the note would be recoverable in any court, as the law does not allow the fraudulent vendee to urge his own fraud in such a case. Although the plaintiffs may not have been apprised of the consideration of the note at the time they received it, yet if they retained it as their own, and used it after they acquired such knowledge, the same consequences result as if they acted upon previous information. The question of the recognition of the sale does not depend upon the plaintiffs intention not manifestedto others, but is a question of law deducible from the facts, which the jury may ascertain. From this view it results, that the circuit court erred in the refusal to charge the jury as requested, and in the charge given. The judgment is consequently reversed, and the cause remanded.