Davis v. Newkirk, Barker & Yates, 5 Denio 92

Davis v. Newkirk, Barker & Yates

5 Denio 92 | N.Y. Sup. Ct. | 1847

By the Court, Beardsley, C. J.

The judge was correct in refusing to discharge the defendants, Barker and Yates, when the plaintiff rested. They had signed a bond by which they engaged to indemnify the sheriff for levying upon and selling this lumber on the execution in favor of their co-defendant in this suit, Newkirk, It was in consequence of receiving this bond that the sheriff proceeded to make the levy and sale, and if that was-wrongful, these defendants were responsible therefor. The bond contemplated such a seizure and sale, and it was a virtual -request to the sheriff to proceed accordingly. What the sheriff did was therefore, in effect, done under the direction and with the advice and concurrence of these defendants, and for which they are as much responsible as the sheriff would be. All who direct, request or advise an act to be done which is *95wrongful, are themselves wrongdoers, and responsible for all damages. (1 Ch. Pl. ed. 1837, p. 91.) Giving the bond of indemnity was alone sufficient to carry the case to the jury on this point, although there was other and sufficient evidence for that purpose.

I think however, the judge erred in rejecting evidence of an agreement between 0. Davis and Floyd, two of the defendants in the judgment in favor of the plaintiff, and the two who gave a confession therein, that said judgment should be given in order to defraud the creditors of the- defendants in said judgment. The plaintiff in that judgment, who is also plaintiff here, claims that it was recovered on a demand honestly due to him from the defendants, and was, as to him, in all respects bona fide. It was rendered on a note given by the defendants to one of themselves, (C. Davis,) in 1841. He remained such owner until March, 1843, when it was transferred upon some terms or for some purpose by the then holder, C. Davis, to the plaintiff or to one Bristol. Bristol was admitted to be the plaintiff’s agent, and both he and the plaintiff had been previously informed that C. Davis, and the other signers of the note, or at least Taft and Floyd, who still remained in business with 0. Davis, were in failing circumstances. This would not be conclusive that a subsequent transfer of the note to the plaintiff was necessarily fraudulent, but it affords a proper ground for a close scrutiny of every such alleged transfer. The transfer of this note was made in fact to Bristol, but upon what terms is not clearly shown. There is a statement of Bristol, who was sworn as a witness, that 0. Davis was at that time indebted to the plaintiff, but it is quite too loose and vague to be regarded as evidence of a fact so important and vital, in a case as strongly suspicious as this is. Nor is there any thing which can be taken as evidence of a transfer of the note to the plaintiff in payment upon, or as security for the debt alleged to be dde to him, from C. Davis, nor in fact that it was transferred to the plaintiff at all. He may have been a purchaser of it, and a bona fide one, and the consideration may have been valuable and adequate; but upon the evidence, as detailed in this *96case, he cannot claim any such character or right. Excluding the idea of a bona fide purchase by him, and there is nothing left of the case but an apparent contrivance to have this judgment perfected at the time and in the form it was, for some purpose; and if the plaintiff was not such a purchaser, it was entirely competent to show that by the agreement between the persons engaged in procuring the judgment to be rendered, that the purpose was to defraud creditors. The plaintiff can claim nothing under this judgment unless he was a bona fide purchaser of the note, for value. That was not shown. It did not even appear that he was in any sense a purchaser, for upon that point the evidence is so vague and equivocal that it must be wholly disregarded. What the transaction reálly was, may not have been fully disclosed on the trial; or if it was, the written case before the court may fail to present it as it appeared. But as it appears in the case, the evidence of an agreement between the two defendants who gave the judgment, that it should be given to defraud creditors, was admissible, and should have been received. The rights of no person who could claim to be a purchaser in good faith, and for value, stood in'the way of receiving this evidenee. Its rejection was erroneous, and there must be a new trial.

New trial granted