Dwight v. Brown

Hosmek, Ch. J. In this case several objections have been made to the determination of the superior court, which excite no difficulty. Of this description are those, which relate to two of the plaintiffs. The declaration of Thomas Broum that he owed Á. Steere and had made to him a lease of the manufactory, was good evidence, under the circumstances of the case, to show, that he was indebted to A. & C. Steere, who, under this firm, were traders in company. The debt from Brown was charged on book, by the company; nor has' it been suggested in proof, that he owed A, Steere individually. A. Steere was an inhabitant of Providence, and C. Steere of Thompson, where Brown dwelt, and the partnership store was kept. Prima facie, it was the obvious intention of Brawn, to acknowledge the partnership debt. — that is, the alone existing debt — naming the principal partner only, at the time of the recognition. Sessions, another of the plaintiffs, boarded a blacksmith, who was in the service of Thomas Brown, at his manufactory : and the proof that Brown procured the board of his workmen at various places, and paid for their board, and that such was his general and habitual course, was satisfactory presumptive evidence, that the board supplied by Sessions, was by his procurement The deposition of Thomas Brown was legally rejected. He was a party to the suit, interested in the costs of it, and swearing in favour of his interest. He, likewise, was the person — 97 — principally concerned in the cause on trial. The ground of the claim that the plaintiffs were endeavouring to support, was the. combination of the offered witness with the other defendants to defraud his creditors, by their aid, and thus to withdraw his property from the state. To admit the testimony to repel the plaintiffs’ claim, would be to suffer him to testify, peculiarly, in favour of his own interest. That a defendant in equity, made a parly for form’s sake, and who is not concerned in interest, may be examined, saving just exceptions, is readily admitted. 2 Madd. Ch. 316. 332. Colchester v.-, 1 P. Wms. 595. Piddock v. Brown & al. 3 P. Wms. 288. But here, the witness was a party in interest; made such on account of substance, and not of form. Thomas A. Brown was interested in the costs of suit ; and the withdrawal of his action at law, after the bill brought, does not relieve him from this objection. Whether the books of Thomas Brown, offered by Fenner Brown, one of the defendants, in order to sustain the consideration of his note, were duly rejected, is the only remaining question in the case. To understand the force of the objection to the testimony offered, it becomes necessary to state the facts particularly. Fenner Brown claims a debt of 571 dollars, 23 cents, by promissory note, dated the 19th of June, 1830, executed to him, by Thomas Brown. The plaintiffs aver, that the above mentioned note was given without consideration, and pursuant to a fraudulent combination between the defendants and the said Thomas, made on the aforesaid 19th of June. No fraud, or conspiracy, or combination to defraud, is by the plaintiffs to have existed, anterior to this date. Then it was, and not before, that Thomas Brown is alleged to have become insolvent, and to have meditated the fraud in question, in order preserve his property and withdraw it from the state. To carry the fraud, or conception of fraud, further back, we have no authority. If the plaintiffs had not proof, they had words at. command ; and even they do not pretend, that any fraud, was contemplated, previous to this period. In order to show, that the note in question was on valuable consideration and bona fide, it was proved, by Fenner Brown, that from April 1825, to the failure of said Thomas, a period of five years, the said Thomas bad been in business as a merchant, and in carrying on a cotton manufactory ; that during all this — 98 — Per*oc*> said Fenner had been in his service, in the afore manufactory; and likewise, had boarded a number of his workmen. Fenner Brown then claimed, that the note in ques* tion was made to him in consideration of the aforesaid board and services, and of some smaller notes given to him for money loaned. • On the other hand, the plaintiffs endeavoured to show, that nothing was due to the said Fenner, and that he had received divers supplies from the said store of Thomas Brown, Then it was, that the said Fenner, to prove that the note given to him was on valuable consideration, offered in evidence the boqks of Thomas Brown, consisting of day books, journals, and ledgers; and to show that they were regularly kept, and commenced in the spring of 1825, and contained an account of all the busiaéss of the said Thomas in his store and manufacto-ry to the date of the note in question : Likewise, that among other things, during the whole of the said period, the above mentioned books comprised the accounts between the said Fenner and Thomas, in regular entries, from week to week, of the services performed by him, and of the supplies made ; and that the books further showed adjustments and settlements from time to time, and the balance carried to the credit of the said Fenner in new account; and that the same was continued until the account was balanced, by the aforesaid note of June 1830: It was, however, admitted, that the settlements were not signed by either party, and that the only book-keepers were the said Thomas and his sons. The defendant, Fen-ner Brown, further offered to show, that the said books were the original books of Thomas Brown ; and that they would demonstrate, on their pages, that the entries and settlements were made at the time they purported to bear date. No evidence of a fraudulent conspiracy prior to the 19th of June, was offered, unless it was presumable from the facts that took place on that day and subsequently ; that is, from the fraudulent combination and the measures in consequence. On a general objection made to the admissibility of the books, they were not admitted in evidence. In this determination I cannot concur. I assume it as incontrovertible, that there was no fraud, or purpose of fraud, anterior to the day, when the note in question was executed. None is proved, either expressly or by inference, unless the inadmissible supposition be indulged, that because Thomas Broum contemplated and practised a fraud, — 99 — on the 19th of June, 1830, therefore, he had contemplated it during his solvency, and had been adapting his books to carry It into execution for the five preceding years. So extravagant a presumption, as a mere fact, cannot be admitted. But on this subject the law is firmly settled. Fraus numquam pre-mmitur. And the wisdom of the rule is demonstrated by this case. The court is called on, to presume, without proof, direct or circumstantial, and in opposition to the strong credibility attachable to mercantile books regularly kept, that, when no apparent motive to defraud existed, the purpose was indulged, and in a train of execution for five years, until it at length was consummated in the giving to Fenner Brown the note in question. The enquiry, then, is simply this ; whether the credits to Fenner Brown, in the books of Thomas, with every mark of fairness and authenticity about them, are admissible evidence, to prove, that his note was on valuable consideration. It is a rule of law, often and uniformly established, that the entries in the books of persons, made against their interest, are evidence of debt; and stand on the same ground, as any other declarations made by them against their interest. 1 Phill. Ev. 191 — 195. 1 Stark. Ev. 69 — 76. Upon this principle it is, that we have admitted the declarations of Thomas Brown, recognizing his indebtedness to A. & C. Steere, the plaintiffs ; and if in this manner their debt may be sustained, why may not the debt of Brown to his son Fenner ? It was adjudged in Barry v. Behbington, 4 Term Rep. 514. a case entirely parallel with this, that entries, made by a steward, of money received by him from different persons, in satisfaction of trespasses, was evidence to show, that the right of soil was in his lord. The entries were made in a common day-book. The defendant objected, that the evidence, in its own nature, was inadmissible ; that it was res inter alios ac-ta; and that the entries were not subscribed by the steward. These are the precise objections made in the present case. Lord Kenyon stopped the counsel from replying. “ We are now called upon,” said he, “ not to determine what weight the evidence ought to have in the cause ; but the single question here is, whether these entries be not admissible evidence. It is clear, that when a steward charges himself with the receipt of money, it shall be received in evidence before a jury, to show that such sum was received by him- But it has been object — 100 — ed, that the steward’s accounts should have been signed by .him. If the entry be not in the hand-writing of the steward, undoubtedly it must be signed by him ; but here all these entries were made by the steward himself, and therefore they were evidence to charge him with the receipt of the money ; and if so, they should have been received in evidence on the trial of this cause.” To the same effect was the case of Stead & al. v. Heaton & al. 4 Term Rep. 669. An entry of the receipt of money was made, by the officers of a township, from the officers of another township, “ It is clear,” said Lord Kenyon, that one entry was properly admitted, because it charged the parish officers with the receipt of the money ” And by Ashhurst, J. this strong expression was used: “ According to all the rules of evidence, the last entry of payment by the parish officers, is clearly admissible.” In the 3d volume of Woodeson’s lectures is cited the case of Goodright, lessee of Harper v. Brokk & Dodd. In this case, the rentals of the plaintiffs family had charged the steward for fifty years back, with certain sums of money. Ry the plaintiff they were offered in evidence; and it was urged, that if they were admitted, the steward, by such insertions in his rentals, might get all the freeholds into the possession of his lord. But the court held, that fraud is not to be presumed ; and that the rentals were admissible to show the money received, and in what right it was received. To the same effect is Warren d. Webb v. Greenville, 2 Stra. 1129. recognized and commented on, by Lord Mansfield, in 2 Burr. 1072. and the, case of Higham v. Ridgway, 10 East 109. In this last case, it was decided, that the written entry of a fact, made by a person against his interest, is evidence of the fact, as between third persons, after his death. “ I think,” said Lord El-lenborough, the evidence was. properly admitted, upon the broad principle, that the entry made, was in prejudice of the party making it.” And by Bailey, J. it was subjoined: “ All the cases agree, that a written entry, by which a man discharges another of a claim, or charges himself with a debt to another, is evidence of the fact which he so admits against himself, there being no interest of his own to advance by such entry.” Many more cases there are maintaining the same doctrine; but I will merely refer to them. Doe v. Robson & al. 15 East 32. Morewood v. Wood, 14 East 327. n. Doe d Bagalley v. — 101 — Jones, 1 Campb. 367. Price v. Liitlewood, 3 Campb. 288. Haddow v. Parry, 3 Taun. 303. Holladay v. Littlepage, 2 Munf. Rep. 316. 1 Phill. Ev. 192, 3. 1 Stark. Ev. 69. & seq. In this state, the charges on a person’s book, of goods, services and money, are legal evidence, in case of his death, to sustain book debt; and much more, are the credits made evidence against him. The entries on a regular book, here, stand on higher ground than the memoranda made at common law. Here the books of a merchant, or any other person, ar.e the repositories of debt and credit, and .«re intended for the specific purpose of ascertaining the state of account between the parties. But in all events, the entries against the person’s interest are equally evidence, with those made merely under the common law. Several distinct objections have been made against the offered proof of the books of Thomas Brown, to each of which I will briefly reply ; premising only, that no further regard •will be paid to the objection of fraud, which rests merely on possibility, and not on proof. ( To the argument that Thomas Brown is living, and his books therefore are not the best evidence, I reply, that the case falls within the same reason, as if he were dead. He is a party to the-suit, adjudged to be an admissible witness. So, likewise, all his book-keepers are parties, and incapable of testifying. It has been said, that the entries are not evidence, in any event. I answer, they are written declarations against T. Brown’s interest, so far as respects the credits ; and are admissible within all the cases. It has been asserted, that the books, and particularly, the settlements, are not subscribed. But they are in T. Brown’s hand-writing, and in that of his clerks ; and hence a signing was unnecessary. If it is suggested, that the books are not brought home to the note ; I reply, the fact is misconceived. The books charge the note against Fenner Brown, to meet the balance found to be Iris due'. To the affirmation that they are res inter alios acta, it is a sufficient answer, that the point has often been decided to the contrary, and that this appears from the cases which have been cited. If a judgment were recovered, by Fenner Brown, rgainst Thomas, and execution were levied on his -and, would — 102 — the account be deemed res inter alios acta, in respect of a levying creditor; It will not be pretended. In ray judgment, it is impossible to make a solid distinction between the recognition of a person by receipt, bond, covenant, or by a credit on his book. The case of Cook v. Swan, 5 Conn. Rep. 140. sanctions the principle for which I contend. The whole court expressed a direct opinion upon a question made in that case, that the credit on the books of Nathan Swan was proof in favour of his son Cyrus, in ah action in which the former was not a party. I think there was no legal ground for rejecting the offered testimony ; and would, therefore, advise, that there be a new trial. Peters and Bissell, Is- were of the same opinion. Daggett and Williams, Js. dissented, thinking that the account books of Thomas Brown were not evidence for himself and the other defendants. New trial to be granted.