Stearns v. Gosselin

The opinion of the court was delivered by Royce, Ch. J. This was an action to recover back money-claimed to have been paid to the defendant by Edward Gosselin, an insolvent debtor, in preference to his other creditors, and in fraud of the insolvent law. The only controversy appears to have been as to whether the payment made by Edward Gosselin to Joseph was so made. As tending to show that it was not, the defendant offered to show by Edward that at the time he made the payment he did not intend to prefer Joseph to his other creditors. The court excluded the evidence; and the only question is as to the correctness of that ruling. The right of an assignee to recover back money in such cases is conferred by sections 1860 and 1861 R. L. To warrant a recovery under either of said sections, it must appear that the payment was made with a view to give a preference to the creditor to whom it was made; and as characterizing the act of making a payment, it is proper to ascertain and consider the intent with which it was made. If a payment is made to any person who has reasonable cause to believe that the person making it is insolvent; or it is made in contemplation of insolvency, it may be recovered back, if made with a view to prevent the property of the payer from coming tó his assignee in insolvency. The in [40] tention of the party making the payment is material, although not conclusive.' The question of the right to prove the intention of a party was before the court in Hulett, Adm’r, v. Hulett, 37 Vt. 581; and the rule was there stated to be that “ where a person’s intent, in a particular transaction, is a question in issue to be tried, we see no ground upon which he can be excluded from testifying to his intent.” It was error to exclude the evidence offered, and the judgment is reversed and cause remanded.