Lee v. Lamprey

Bartlett, \T. Upon the question of fraud, evidence of the intent of Lee and of Lamprey, so far as it related to any design to deprive the latter’s creditors of opportunity to avail themselves of their legal remedies, and of Lee’s knowledge of the condition of Lamprey’s affairs, was competent. Foster v. Thompson, 5 Gray 453; Edwards v. Currier, 43 Me. 483; Blake v. White, 13 N. H. 272. The letter of January 14th was, therefore, properly admitted. We do not think the mere fact that Lee consulted an attorney, and acted upon his advice in attaching, had any tendency to prove the claim in suit well founded in fact, or honest. The points in controversy were the consideration and good faith of the claim. The consultation was after the debt was alleged to have accrued, and the act of taking and following legal advice, in regard to attaching, of itself, “ was equally consistent with the conflicting positions taken by the pai’ties;” by Ingalls that the claim was unfounded and fraudulent, and by the plaintiff that it was an honest debt; no inference could have been drawn from it either way. The mere fact, then, that such advice was taken and followed was immaterial. If the offer is to be regarded as a proposal to show what took place between Lee and Marsh, Lee’s statements could not be received in his own favor, for they accompanied and explained no act which would be “ evidence in his favor tending to prove the matters in issue,” since the act of attaching was equally consistent with the honesty and validity of his claim and with its fraudulent character; Currier v. Boston & Maine Railroad, 34 N. H. 506; 1 Greenl. Ev., sec. 108; and Marsh’s advice to him, founded on such statements, could stand no better. The evidence was properly rejected. We think the evidence of the dealings with the partnership funds, between Lee and Lamprey, was competent in connection with the other evidence. Bridge v. Fggleston, 14 Mass. 250; Blake v. White. If there was collusion between Lee and Lamprey, by means of this claim, to cover up the latter’s property from his creditors, the design was still in the process of execution, and Lamprey’s declarations, made in the prosecution of the joint undertaking, or accompanying and explaining acts done in furtherance of it, were admissible against Lee. Page v. Parker, 40 N. H. 62; 1 Greenl. Ev., sec. 111. Neither the particulars of the conversation nor the contents of the letter are stated, and, in the'absence of any specific objection on the point, either made at the trial or urged in the argument, we take them to have shown such declarations. This evidence was received with the proper limitations, and if the plaintiff had desired a repetition of them in the charge, he should have called the attention of the court to the matter at the time. Goodrich v. Eastern Railroad,, 38 N. H. 396; Moore v. Ross, 11 N. H. 557; Belknap v. Wendell, 36 N. H. 250; Wright v. Boynton, 37 N. H. 22. As no other exceptions were taken there must be Judgment on the verdict.