Aiken v. Peck

[260] The opinion of the court was delivered by Hall, J. The first question to be considered is, whether the record of the trustee proceeding was properly excluded by the county court. It is not claimed in behalf of the defendant, that the whole subject matter of this suit, — the right of the plaintiffs to recover the penalty, —has been inquired into and passed upon in the former suit, — but that a question necessarily arising in this case, and which must be determined in favor of the plaintiffs, in order to entitle them to recover, viz., the question, whether the sale from Briggs to the defendant Peck was in fraud of the plaintiffs, as creditors of Briggs, was in controversy in that suit, and was decided in favor of the defendant. For this reason it is insisted, that the record offered ought to have been admitted and held to be a bar to the plaintiffs’ recovery. In order to estop a party from proving a fact, because the fact had been found against him in a former suit, it must appear, that the precise question was adjudicated in such suit. It is not a matter to be left to conjecture. If, from the record, (when the record alone, as in this case, is relied upon,) it should appear possible, that the question was left undecided, then there would be no estoppel; for an estoppel, in the language of Lord Coke, “ must be certain to every intent.” From an examination of the record offered it seems quite clear, that it can, at most, be but matter of conjecture, that the question of fraud was adjudicated. It does indeed appear from the record, that the plaintiffs claimed, that the defendant was trustee, for the alleged reason, that he held the property by a sale fraudulent as to them, and that the defendant denied that he so held it. But this was not the only issue. The defendant also claimed, that he was not trustee, for the reason that the property, with which he was sought to be charged, had been taken from his possession and disposed of on attachments against Briggs, and that therefore he was not liable on the process. ’Both these issues -were before the court, and upon them the court rendered a general judgment, that the defendant was not trustee, — but upon which of them it was founded does not appear. There being no certainty,-therefore, that the question of fraud was passed upon by the court, we think, the record could not constitute a bar to this suit, and that it was properly excluded. The effect of the record having been thus deter [261] mined, the several other objections, which were taken in the argument to its admissibility, have not been considered. The remaining question in the case is, whether the plaintiffs, in order to prove that they were creditors of Briggs at the time of the alleged fraudulent sale, were entitled to give in evidence the admissions of Briggs to that effect. It is claimed by the plaintiffs, that the testimony was admissible under the rule of evidence, that, when the issue is substantially upon the mutual rights of third persons at a particular time, such evidence is admissible, as might have been legally introduced in an action between the parties themselves. On consideration we are of opinion, that the present action does come within that class of cases. Our principal ground of doubt has been, not whether the admissions of Briggs might be competent evidence, but whether those made subsequent to the sale ought to have been received. The rule, on which the plaintiffs rely, has generally been applied in actions for false returns, and for escapes, against sheriffs, where proof of the plaintiff’s debt is necessary; or where, in. actions by or against assignees in bankruptcy, proof is required of the petitioning creditor’s debt. In these cases the admissions of the debtors, though not parties to the suit, have been held to be competent evidence. In some of the cases little attention appears to have been given to the time, when the admissions were made; and there is some confusion in them on that subject. The more recent cases, however, limit the admissions of the debtor, in actions against the sheriff, to those made previous to the act, by which his liability was incurred. And in bankrupt suits all admissions, made by the bankrupt after his act of bankruptcy, are excluded. Hoare v. Coryton, 4 Taunt. 560. Smallcombe v. Bruges, 13 Price 136. Taylor v. Kinloch, 1 Stark. R. 175, [2 E. C. L. 344.] Williams v. Bridges, 2 Stark. R. 42. 1 Greenl. Ev. 181. This distinction we think a sound one. After other persons have acquired separate rights and interests in regard to the debt, the admissions of the debtor become liable to the suspicion of collusion, and should, qn principle, be excluded. But while the debtor and creditor are alone to be affected by the character and extent of the indebtedness, their declarations in regard to it are not open to such suspicion, and may, perhaps, be regarded, in reference to the in [262] debtedness, as part of the res gestee. We think, the plaintiffs are entitled in this suit to the benefit of all the evidence, of which they might have availed themselves, at the time of the alleged fraudulent sale, in an action for the debt, against Briggs, — but that they can make no use of any admissions of Briggs, made subsequent to such sale. This decision would exclude, not only the admissions of Briggs testified to by Colburn, but also all the matter embraced in the deposition of Aiken, except the mere fact, that the note introduced in evidence was substituted for a previous note surrendered. Whether the note surrendered was a genuine nóte of Briggs, executed by him for a real debt, should have been found by other evidence, among which might have been the admissions of Briggs, made prior to the alleged fraudulent sale. It was claimed, in argument, by the counsel for the defendant, that all admissions of Briggs ought to have been excluded, under the rule in Warner v. McGary, 4 Vt. 299, that, where a person is himself a competent witness, his admissions are in general incompetent. But we think the admissions of the debtor, in actions like the present, do not come within the principle of that case and the subsequent decisions in this state in accordance with it, and that such admissions should be received in evidence, without reference to the question, whether the debtor would himself be a competent witness. The result is, that the judgment of the county court is reversed and a new trial granted.