Pearsall v. McCartney

28 Ala. 110 | Ala. | 1856

GOLHTHWAITE, C. J.

We will first consider the action of the court below in sustaining the demurrer to the fourth specification, which alleges that McCartney, on the 6th of March, 1841, executed a deed of trust in fraud of the bankrupt law, for the benefit of certain creditors, conveying to them for their benefit his tavern house and lot, certain slaves, and all his property except an inconsiderable part thereof.

It is to be observed, that the single matter of fraud alleged in this plea is the act of the bankrupt in giving by deed, executed on the 6th March, 1841, a preference to' certain of his creditors. The allegation, therefore, that the deed was executed in fraud of the bankrupt law, is merely a conclusion of the pleader, and is entitled to no weight, unless the execution of such a deed is, of itself, a sufficient ground to invalidate the proceedings, or to impeach the discharge.

The bankrupt law was passed in August, 1841. The second section provides, “ that all future payments, securities, conveyances, or transfers of property, or agreements, made or given by any bankrupt, in contemplation of bankruptcy, and for the purpose of giving any creditor, endorser, security, or other person any preference or priority over the general creditors of such bankrupt; and all other payments, securities, conveyances, or transfers of property, made or given by such bankrupt in contemplation of bankruptcy, to any person or persons whatsoever, not being a bona fide creditor, or purchaser for a valuable consideration without notice, shall be deemed utterly void and a fraud upon this act; and the assignee under the bankruptcy shall be entitled to claim, sue for, recover, and receive the same as part of the assets of the bankruptcy; and the person making such unlawful preferences and payments shall receive no discharge under the provisions of this act. Provided, that all dealings and transactions by and with any bankrupt, bona fide made and entered into more than two months before the petition filed against him or by him, shall not be invalidated or affected by this act; Provided, that the other party to such dealings or transactions had no notice of a prior act of bankruptcy, or of the intention of the bankrupt to take the benefit of this act. And in case it shall be made to appear to the court, in the course of the proceedings in bankruptcy, that the bankrupt, his application being voluntary, has, subsequent to the first day of January last, or at any other time, in contemplation of the passage of a bankrupt law, by assignment or otherwise, given or secured any preference to one creditor over another, he shall not re-receive a discharge, unless the same be 'assented to by a majority in interest of those of his creditors who have not been so preferred.”

The question is, whether giving a preference to a creditor since the first day of January, 1841, although such act is not done in contemplation of the passage of a bankrupt law, is prohibited by this section. The language used in the first part is without the slightest ambiguity. It covers only such preferences as may be given by the bankrupt, after the passage of the law, in contemplation of bankruptcy. Now it would be very strange if the law-makers should visit an act done before the law with a penalty, and allow the same act to pass free if done after the passage of the law; and this must be the effect, if the construction insisted upon by the appellants be correct. If a bankrupt gives a preference before the passage of the law, it prevents his discharge; if after, he can obtain it. We are to distinguish in favor of the preference given after the act, and denounce the preference which the bankrupt gives before its passage.

Such results appear to our minds so unreasonable and contradictory that we could only be forced to adopt a construction which would produce them by the clearest and most unequivocal language. We fully concede that, in the interpretation of statutes, courts should, if possible, give effect to every word and sentence; although it is frequently very necessary, in the application of this rule, not to lose sight of others equally as important in enabling courts to arrive at . the true intent of the statute. The main argument to support the construction contended for by the appellants, is, that in giving any other wc should nullify the words, “ subsequent to the first day of January last.” But we see no real difficulty on this point. We regard the words referred to as used simply to designate a certain period óf time included between the first of January, 1841, and the passage of the act; and the words “ or at any other time,” immediately following, can only be referred to a period antecedent to the first of January. The act to which the statute points, when done within either of these periods of time, is thus connected with the succeeding words, and is prohibited only when done in contemplation of the passage of a bankrupt law. The whole sentence, we agree,' is awkwardly expressed; but the construction we have given it violates no rule, and harmonizes instead of conflicting with the other parts of the act.

As to the amendment of the petition, we are satisfied that it was within the power of the court. Under our practice, the petition for the supersedeas stands in the place of the declaration (Edwards v. Lewis, 16 Ala. 315); and we can see no good reason why it may not be amended, provided that, in so doing, an entirely new case is not made, as to the execution which is described in the petition. If the amendment changed the execution, we incline to the opinion, that a new order and supersedeas would be necessary, if the object was to continue the supersedeas: But this is not the case here, as the amendment merely states the ground on which the rights of the pe-tioner depends, with more fullness and particularity; and in this aspect we can see no possible objection to it, the more especially as none was made to it by the opposite party, who answered it by his specifications.

Upon the question of practice, as to which party has the right to open and conclude, the construction given by this court, since a very early day, to the 19th rule of practice (Clay's Digest, 610), is that in every case the plaintiff has this right. Worsham v. Goar, 4 Port. 441; Grady v. Hammond, 21 Ala. 428. Wo have frequently held, also, that, with us, the super-sedeas was a substitute for the old writ of audita querela. — Edwards v. Lewis, supra; Bruce v. Barnes, 20 Ala. 219. In that writ, the defendant in the judgment was the actor, or ' plaintiff, and complained of the other party, (F. H. N. B. 234,) who demurred, or pleaded. — Tidd's Practice, 672, 717, 718. So, in the petition for, and thewrit.of supersedeas, the defendant in the execution is the actor; the petition, or statement of facts, which in law entitles him to the relief he seeks, stands in the' place of the declaration; and the plaintiff in the judgment either demurs or pleads to it. _ It is in the nature of a new suit. — Shearer v. Boyd, 10 Ala. 179; Edwards v. Lewis, supra; Bruce v. Barnes, supra. It was upon the same principles that we held, in Grady v. Hammond, supra, in an issue between a plaintiff in attachment and the transferree of the debt attached, that the former was entitled to the opening and conclusion; for the-reason that, in that proceeding, he was the actor, and consequently the plaintiff. Upon all the analogies, we must hold that McCartney, in these proceedings, occupied the position of plaintiff, and therefore had the right to open and conclude.

As to the question of allowing the general good character to be given in evidence, in civil causes, the rule is* that in slander, criminal conversation, and breach of marriage con-, tract, as the character of the party may legitimately enter into the question of damages, in such cases, it may be givénin evidence (2 Stark. Ev.); but although the issue in civil cases may directly involve the commission of a fraud, the English rule, as well as the current of American cases, is, that the party against whom the fraud is charged is not warranted in repelling it by evidence of his character. — Att’y Gen. v. Bowman, 2 B. & P. 532, n. a.; Gough v. St. John, 16 Wend. 646; Swetz v. Plunket, 1 Strob. 372; Potter v. Webb, 6 Greenl. 14; Cow. & Hill's Notes to Ph. Ev., 456, and cases there cited. Our own court, in Ward v. Herndon, 5 Port. 382, held in conformity with the views we have expressed; and we consider that decision a correct exposition of the law.

It is urged, however, that as the appellant made no objection when the evidence was offered, but permitted it to go before the jury, and did .not ask to exclude it until after the evidence on both sides was closed; his motion was, under these circumstances, properly overruled.

There may be cases, where the party waives his right to object, by failing to do so in time.; as where secondary evi'dence is offered, in which case, ii this objection be not made in season, the other party may not have the power to obviate it. — Russell v. The Union Insurance Co., 1 Wash. C. C. R. 409; Concord v. McIntyre, 6 N. H. 527. But this is on the ground that the objection, if made in time, might have been removed, and goes rather to the mode and manner of proof than to the evidence itself. But the principle has no application to evidence which is in its nature irrelevant; and as to evidence of this character, the party who is in fault, by introducing it, cannot complain of its rejection at any stage of the trial. It is true that, in Townsend v. Jeffries, 24 Ala. 329, we held that the failure to object to a written interrogatory, asking a witness where he saw a trespass committed, and to describe it, operated as a waiver to the reply, if responsive. There, however, the fact to which the question pointed, if established, was relevant to the case; while here the fact is altogether irrelevant, and we think, where such is the case, the objection may be properly taken at any time before the jury retire. — Creed v. White, 11 Humph. 549.

In relation to the admission of the amended bill, which the court allowed the appellee to introduce as rebutting evidence, after the original bill had been offered by the other party, we have only to observe that, where a bill in equity is used as evidence in another suit, as an admission of the complainant, it is governed precisely by the same rules which apply to other admissions (Roberts v. Tennell, 3 Mon. 249); and no rule is better settled than that admissions, made at one time, cannot be qualified or controlled by counter declarations made at another. — Lee v. Hamilton, 3 Ala. 529. It may be that an amended bill must be taken as part of the original bill, in the suit in which it is filed, and could there be used as evidence to rebut or explain admissions made in the original bill; for the reason, that the opposing party in the case has the ad- ' vantage of his answer also as evidence. But in a different suit, where the parties are not the same,'.the rule would not apply.

For the errors we have noticed, let the judgment be reversed, and the cause remanded.

Rice, J., having been of counsel, did not sit in this case.