12 Wend. 41 | N.Y. Sup. Ct. | 1834
By the Court,
The admissions of M’Gregory and Shearer, as proved on the trial, were clearly competent evidence as part of the res gesta constituting one of the principal points litigated between the parties. The property taken and sold upon the execution against M’Gregory and Adams was not found in the possession of either of them, but of the Shearers; and it became necessary, therefore, for the defendants to prove title to the property in themselves, or in one of them. To show property in M’Gregory, a sale, under the Troy Bank execution, at which M’Gregory was the purchaser, was attempted, and must be sustained or the defendants must fail. What was necessary to be proved by one party might be disproved by the other. M’Gregory and John L. Shearer were the principal actors in the transaction relative to the Troy Bank execution, as is abundantly proved by Lewis Shearer. Their acts, and of course their declarations at the time while engaged in bringing about the sale and accomplishing the avowed object of it, were undeniably competent and pertinent. It is conceded their acts were so, and that their declarations, to the extent claimed and proved, were admissible, stands upon as clear and well settled a principle of evidence. They were a constituent part of, and gave character to the transaction or sale. 1 Phil. Ev. 202. 1 Starkie, 39, 47.
If the testimony of John L. Shearer on the former trial had been used by the plaintiff and the objection to its competency on the score of the interest of the witness had been made by the defendants, now for the first time there would be some plausibility, if not force, in the argument, that had it been made before, the witness might have been released ; now it is too late. Even under this view of the question, I will not say it would be decisive; for the evidence of the former testimony is admitted only from necessity, and is justly liable to many exceptions; and it seems even still to be questioned by high
The admission of the testimony at the circuit was put on the ground that the defendants, by introducing the witness on the former trial, had declared his competency and credibility, and thereby precluded themselves from questioning either. This was undoubtedly true, so far as that trial was concerned, 1 Phil, Ev. 213, but no farther. Independently of that trial, Shearer was not the witness of the defendants, unless they again chose to make him such. Had he been living and
The judge erred in admitting the testimony of J. L. Shearer ; but, notwithstanding, I am of opinion there ought not to be a new trial, and that the jury were bound to render their verdict for the plaintiff independently of that testimony, on the ground that the first sale was fraudulent and void. The evidence of Lewis Shearer, Noble and Maxwell, proved every fact contained in the statement of John L. Shearer, and much more fully and explicitly than was testified to by him, according to the account given of his testimony. The manner of selling the property, and the circumstances under which it was sold by the deputy sheriff, were highly exceptionable; and if supported, would result in an enormous sacrifice. Pro
Laying entirely out of view the testimony of J ohn L. Shearer, it is impossible, upon the whole case, to doubt that here was a deliberate and fraudulent combination between the parties to the first sale to defraud the plaintiff in this cause; and it would be discreditable to the administration of justice, to give countenance to such a perversion of the judgment and process of the court.
The defendants are not entitled to any peculiar protection or favor, as they cannot be deemed bona fide purchasers. They were fully advised of the claims of the plaintiff, and were obliged to indemnify the sheriff before he would hazard a sale. Under the circumstances of the case, in contemplation of law, they stand in no better situation than M’Gregory, being chargeable with notice of his fraud, and having chosen to take the risque of it.
The following are authorities for denying a new trial, notwithstanding the error of the judge. To induce the granting of a new trial, there should be strong probable grounds to believe that the merits have not been fully and fairly tried, and that injustice has been done. 3 Johns. R. 532, 3. 2 Caines’ R. 90. 5 Johns. Rep. 138. 8 Wendell, 673. 2 T. R. 4. 1 Bos. & Pul. 339. 1 Taunton, 12. No such grounds exist in this case.
New trial denied.