20 Md. 93 | Md. | 1863
delivered the opinion of this Court:
The exception contained in this record presents the single question, whether the appellants, as attaching creditors of R. McEldowney & Co., were entitled to give in evidence certain declarations made by Robert McEldowney, a member of that firm, for the purpose of allowing a collusive and fraudulent possession of their property and assetts by the appellees.
The evidence which the Court refused to admit, was that of James Henderson, offerer! by the appellants to show, ■that Robert McEldowney, before going to New York in the fall of 1856 to purchase goods, said to the witness, when neither of the appellees were present, that they were insolvent and expected to fail, and that the appellees advised them to fail full-handed; that McEldowney went to New York, made large purchases, and that the firm failed shortly after his return; that McEldowney then said to the witness, that he must cease to be cashier, as every thing was in the hands of the appellees.
This testimony had been preceded by evidence showing that the McEldowneys failed on the 9th of December 1856, with upwards of 8100,000 worth of stock on hand, and that immediately after their failure, the appellees took and retained possession of the stock, until about the 9th of February 1857, during which time it was reduced to an
The fact sought to be established by the appellants, was the fraudulent possession,.by the appellees, of property and assetts of the firm of R. McEldowney & Co., and the question presented by the exception is, whether the rejected evidence, or any part of it, was admissible for that purpose. We are aware of no rule under which the declaration of McEldowney to the witness, that he was advised by the appellees to fail full-handed, could be considered admissible evidence of the fact that such advice was given, but we are satisfied that the remaining portion of the testimony, taken in connection with the other evidence in tho case, tended to show collusion between the McEldowneys and the appellees, and that it ought to have been permitted to go to the jury as evidence of that fact. “In questions of fraud, any fact, however slight, if at all relevant to the issue, will be admitted in evidence, though the circumstances when combined must be so strong as to satisfy tho jury of the fact sought to be established;” and although “fraud is never to be presumed, yet it is not necessary to prove it by- positive .and direct testimony.” Davis vs. Calvert, 5 G. & J., 269. The question as to the admissibility of such evidence as this exception contains, was considered in the cases of Kalb vs. Whitely, 3 G. & J., 188, and McDowell vs. Goldsmith, 6 Md. Rep., 329, in which it was held, “that where it is necessary in the course of a cause to enquire into the nature of a particular act, and the intention of the persons who did the act, proof of what the person said at the time of doing it, is admissible for the purpose of showing its true character;” — “and that where the evidence is offered as a mere fact, which is connected with the matter in dispute, and not with the view to affect the party otherwise than as the actual existence of the fact affects the nature of the transaction itself, then, although it
Being of opinion that a part of the evidence rejected by the Court was admissible, we shall reverse the judgment, and award a procedendo.
Judgment reversed, and procedendo awarded.