3 Barb. 20 | N.Y. Sup. Ct. | 1848
By the Court,
The goods in question were purchased of the plaintiffs under false pretences amounting to a felony. (2 R. S. 677, § 53. Id. 702, § 30. The People v. Haynes, 14 Wend. 546.) Prima facie, the law of Massachusetts, where the fraud was committed, is like our own; and when no proof is given on the subject, our courts will act on their own laws. (2 Hill, 201, 2. 22 Wend. 322 to 324. 2
The charge of the circuit judge was more favorable to the defendants than was warranted by law and the facts.- The charge, by submitting to the jury the question as to the good faith of the defendants’ purchase, and in telling (hem a purchaser in good faith from the fraudulent vendee, who had obtained them by fraud or false pretences, Gould hold them as against the real owner, virtually instructed the jury that there was no difference between a fraudulent and a felonious acquisition of property; and that the bona fide purchaser,- in both cases, was alike protected. This error in the charge was favorable to the defendants, and cannot be com'plaine'd of by them. That it was not necessary that Kline should have been convicted of the felony, to enable the owner to reclaim his goods, see 22 Wend. 285, note. The rule on that subject, in this country, is different from that prevailing in England, arising from the statute which prevents a me'rger of the individual injury in the crime against the' public.
But supposing the goods tvere not feloniously obtained by Kline from the plaintiffs, they were clearly acquired by him fraudulently. Even in such case, the defendants, deriving title from the fraudulent vendee, cannot defeat the claim of the vendor, unless their purchase was in good faith and without notice of the fraud. They may shelter themselves, indeed, under Hodge, if his purchase was in good faith and for a valuable consideration. But it is plain that Hodge did not purchase in good faith and without notice. He parted with no new consideration. He took them to recover a precedent debt due to his principal, under circumstances of great suspicion. And the defendants who purchased from him, did so out of the Usual course; at a sum much less than their value; with unusual and altered and defaced marks upon them, calculated to arouse
The defendants’ counsel, on the argument of this cause, raised an .objection to the competency of the plaintiffs’ attorney as a witness. The objection on the score of interest was waived at the trial. It is now for the first time put upon the ground tjiaf h,e was the attorney, and that a person standing in that relation should be excluded from testifying, upon principles of public policy, We have adopted no such rule in this state, even if the objection i,n this stage of the cause could be listened tp af all. The testimony of a witness standing in that relation to ope of the parties to the suit, is open to observation before the jury,
We see no ¡reason to disturb the verdict, The motion for a pew trial must therefore be denied.
