Barnum v. Hackett

| Vt. | Jan 15, 1862

Peck, J.

This is a qui tam action to recover the penalty given by statute for taking certain fraudulent judgments by confession in favor of this defendant against Merchant & Fiske, with intent to defraud the creditors of the judgment debtors. It comes here on exceptions taken by the plaintiff on trial before the jury.

The first exception is to the exclusion of certain facts offered to be shown by the plaintiff’s witness, John A. Child. The plaintiff having introduced copies of record of the judgments, introduced Child as a witness, who testified that being employed by creditors of Merchant & Fiske, he called on the defendant Hackett at his house in Westford on the 2nd day of June, 1860, (the judgments bearing date in January, I860,) and enquired of him what his claim was ; that the defendant told the witness he could not give him a statement of it, that all the minutes and evidences of debt were left in the files oí the justice. He testified that he did not inform the defendant of his employment by creditors. The plaintiff then offered to prove by the witness that on going to the justice files he found no minutes or evidences of debt there. This the court excluded, and as we think, properly. It is claimed to be admissible as tending to show that the defendant made a false statement in relation to his claim. If it would be competent to show the statement false, the evidence offered was not sufficient to prove it so. The statement was that the minutes and evidences of the debt were left in the files of the justice. The offer was simply to show that six months after the date of the judgments Child went to the justice files and did not find them, that is, the minutes and evidences of debt. The defendant was not the keeper of the‘justice files nor responsible for the manner in which he kept his papers ; nor did Child enquire of the justice or make known to him his business, or even see him, at least nothing of the kind is embraced in the offer. The papers may have been there and on enquiry of the justice Child might perhaps have found them. More clearly still does the evidence offered fail to show that the. papers were not left there. It is claimed to be admissible in analogy to the principle that when one refers another to a third person for information the declarations of such third person are evidence. This principle is limited in its application to peculiar and special cases, if it can even properly apply to any case except where the information thus obtained was given for that purpose, and has been acted on. Before the plaintiff can claim any benefit under this rule he ought at least to show that Child made enquiry of the justice. Nothing appears in this case to make the rule relied on applicable.

The next question is whether the court erred in excluding the declarations of Merchant tending to show his fraudulent intent in confessing the judgments. The criminal intent of Merchant in confessing the judgment was a material fact in the case ; the only question is whether his declarations offered were competent to prove it. Merchant is not a party to the suit, but is a party to the alleged fraudulent judgment. The declarations were not made at the time of the confession of the judgment, but subsequently. It is not competent for a party, who has made a conveyance, afterwards to make declarations to be used against the grantee to impeach its validity, even though such -declarations relate to his motive in making the conveyance. We can not see why the principle should not apply to a. judgment as well as a conveyance. As to declarations of this character made before the conveyance, the authorities are not uniform, but it is not material what the law is in such case.

But it is insisted the evidence is admissible upon the ground that it is a part of the res gesta. Merchant made the declarations while on his way to Hackett’s, as he (Merchant) said, to obtain his share of the money realized from the sales under the judgment in question. To bring it within this principle we must treat the fact that he was going after the money as the res gesta. This is offered to be proved by his declarations. Thus the res gesta is first proved by his declarations, and then the further declaration, as to his motive in confessing the judgment, is to be admitted on the ground that it is part of the res gesta. This will not do. The res gesta in this case is an antecedent act which had already been completed, the confession of the judgment. The intent offered to be proved by the declarations had reference to his motive in doing that antecedent act. The declarations do not accompany the act and are not admissible on this ground. Had they accompanied the act of procuring the judgment, the argument would have been more plausible. There was no error in rejecting this evidence.

The next question is, whether the court erred in directing a verdict for the defendant. The court adhere to the decision in Brooks v. Clayes and Morse, 10 Vt. 37" court="Vt." date_filed="1838-01-15" href="https://app.midpage.ai/document/e-l-b-brooks-v-clayes-6571973?utm_source=webapp" opinion_id="6571973">10 Vt. 37. So far as the questions involved in this ease were there decided, that case múst govern this. That was a case of a conveyance, but the principles there laid down are applicable also to judgments. In that case the action was brought against the grantee in the alleged fraudulent conveyance, and in this case the action is against the creditor in the alleged fraudulent judgments. The debt in that ease and the debts in this case both stand in the same relation to the alleged fraudulent transaction. In neither of the cases is the action against the debtor whose creditors are attempted' to be defrauded. In such case, in order to fix the penalty upon the defendant, it must be shown that the intent to defraud creditors existed in both parties to the conveyance or judgment at the time of the transaction, that is, at the time the conveyance was made or the judgment procured. The ground of the decision in Brooks v. Clayes and Morse is that a combination, concert or collusion between the parties to defraud the creditors, was necessary to a conviction, and that if the intent existed in the mind of the grantees only, the penalty is not incurred. The language of the court in that case is broad enough to warrant the conclusion from it, that in all cases it is necessary. But the rule that requires the criminal intent to exist in both parties, taken in its most comprehensive sense, does not require all the persons who are parties to participate in such corrupt intent. It may exist in both parties, the grantor and grantee, in the debtor and creditor in the alleged fraudulent judgment, without existing in all the persons that compose the party on one side or the other, if composed of two or more. That is not necessary. One of two partners might intentionally mislead the other one, and induce him to believe they were justly indebted to the person to whom they gave the judgment or conveyance ; or one partner might, in the absence and without the knowledge of the other, procure a fictitious judgment or take a frandulent conveyance to the firm, and we think even the strict construction applicable to this, as well as to other criminal statutes, does not require the rule to be extended so far as to shield all in such case because one is innocent. There may be such a combination or common criminal intent between grantor and grantee as to incur the penalty, notwithstanding there is a co-grantor or co-grantee who is innocent of the corrupt intent.

It is claimed that if one of the parties, that is, the grantor or grantee, has such intent ultimately to cheat and defraud creditors, *and the other party has an intent only to delay creditors temporarily by preventing an attachment, it is sufficient. In such case the conveyance might be void, but the penalty would not necessarily be incurred because the conveyance was void. The jprinciple that requires the corrupt intent in both parties means a criminal intent in both.

The only remaining question is whether the evidence on the part of the plaintiff entitled him to have the case submitted to the jury. If the testimony of Fiske as to his motive and the motive of Merchant in confessing the judgments, is true, the penalty in this ease was not incurred, whatever Hafikett’s motive might have been. But the facts testified to by other witnesses have tendency to show the necessary fraudulent intent; and Fiske’s testimony to the contrary as to the motive was not as matter of law necessarily .conclusive, notwithstanding he was introduced by the plaintiff. Fiske stood in such a relation to the transaction as might have induced him to put as favorable a construction on his conduct and motives as the truth would warrant. As to the motives of his partner, Merchant, it is clear that Fiske’s testimony was not conclusive. The case, therefore* should have been submitted to the jury.

Judgment Reversed and new trial granted.