Cady v. Owen

Poland, Ch. J. It does not appear from the exceptions in the case whether the plaintiff’s witness, Moore, was or was not enquired of, on his cross examination, whether, at the time the property in question was attached by the defendant, he (Moore) said anything in reference to the plaintiff’s being the owner of it. Hefiiad testified tkat the property belonged to the plaintiff. The defendant offered to prove that on that occasion Moore said nothing in relation to the plaintiff’s being the owner. The plaintiff objected to this, but it does not appear that he objected on the ground that Moore was not enquired of on his cross examination, and we must therefore regard it as an objection to the general nature of the íaet offered to be proved, whether that was a fact having any legal tendency to discredit the. evidence of Moore given for' the plaintiff. If the plaintiff’s objection to the evidence was that the enquiry had not been put to Moore, he should have raised that to the court. Such preliminary enquiry, when necessary to be made, may be waived or not insisted upon, and if not insisted upon, may properly be regarded as waived. It might have been a long time [602] after Moore testified, before this evidence was offered, and the presiding judge could not be expected to keep in memory whether the question had been put to him or not. If the objection was not placed on that ground, he might well suppose the question was put, or that the party waived it, and that the objection only applied to the general character of the evidence offered. The objection that the preliminary enquiry was not put, ought also to be stated, so that the defendant might obviate it by thus re-calling the witness and making the enquiry. The counsel have discussed the question whether this was a case where the preliminary enquiry was necessary if it had been required, but as we think the question not properly raised, and as we are not entirely unanimous in our views of it, we leave it undecided. The tendency of the evidence objected to was, that Moore stood by and kept wholly silent and allowed the defendant to seize and, take away the property to satisfy his debt, when in fact it belonged to the plaintiff, as he has sworn upon the trial. The defendant insists that if it had been true that the property belonged to the plaintiff, and defendant attempted to take it upon an attachment against Moore, that he would naturally have disclosed it, and that as a fair and reasonable man he was bound to do so, for the safety and protection of the plaintiff, and to save ■ him, as well as the attaching creditor and officer, from litigation and difficulty, and that as he did not, his conduct was inconsistent with his testimony, and therefore tends to cast some suspicion and doubt upon its truth. Asa matter of common experience, we are all aware that men generally are averse to having even their own property attached upon their debts, and many will even assert ownership in another to prevent it, and when it does in fact belong to another, we could hardly expect the debtor to stall'd silently by and see it seized for his debt. We think no fair-minded, honest man would feel justified in doing so, and if the defendant satisfied the jury that Moore did so, that his conduct was so far inconsistent with his testimony as to be admissible for the jury to weigh in connection with it. The charge of the court to the jury seems to have been satisfactory, and no exception was taken ; but upon the jury coming [603] into court not agreed, and asking the court to repeat the instructions, the plaintiff’s counsel requested the court to instruct the jury <! that in order to have the representations of the plaintiff operate as an estoppel the jury must find that they were made with the fraudulent intent on his part to deceive and mislead said Reyminton.” This request was made at a time when the court below would have been fully justified in wholly disregarding it, and the plaintiff entitled to no exception for such refusal. The rule of practice requires that any special requests to charge should be presented to the court by the opening of the argument for such party, and though this is not always very rigidly enforced, yet to allow a party under the circumstances of this case, after the jury had been in consultation on the case, and returned into court disagreed, when the court could have no reasonable time or opportunity for reflection or consideration, to present new requests for instructions, would be wholly intolerable, and it should never be permitted. From the exceptions in this case, however, we understand the presiding judge to have allowed an exception to the refusal of the court to charge according to the request, so that the soundness of the proposition embraced in the request is before us. We are of opinion it cannot be sustained ; that if one stands by and sees his own property sold by another, or dealt with by another, to or with third persons, he is estopped from aftez wards setting up his own title against persons thus purchasing, or giving credit upon it, even though his own conduct result from mere carelessness or negligence, and with no real purpose to defraud. So if it be done consciously and purposely, but the party at the time really intends not to assert his own title to the property against such- third person, his purpose could not be said to be fraudulent; the fraud consists in the subsequent attempt to set up a title he has once disavowed, and upon which another has acted. Judgment affirmed.