69 Conn. 492 | Conn. | 1897
The leading provisions of the Practice Act do not apply to actions of replevin, and the statute authorizes a plea of “ the general issue, with or without notice, as may be necessary.” General Statutes, §§ 905,1330. Under such a plea, any evidence which goes to meet the plaintiff’s allegations that the goods in question were his property, of which he was entitled to the immediate possession, and that the defendant has wrongfully detaiued them from him, is relevant and admissible, subject to the statutory rule as to notice contained in the Revision of 1875 (p. 524), Title 19, Chap. 7, § 10. It was therefore competent for the defendant in this action to offer proof that the plaintiff’s title was the fruit of a fraudulent conspiracy to cheat the creditors of Harris, who as to them remained the real owner, and upon an attachment against whom the goods were rightfully detained. The issue remains the same, whatever notice may be filed, and the notice
The plaintiff, after buying the goods from Harris, had shipped them from Boston to Doblin & Rosenthal, a firm of auctioneers in New York City, and they were attached while in transit through this State. He testified in his own behalf that he learned that they were for sale through this same firm, and went on to Boston with one of them who was his brother-in-law, to examine them before purchasing. Upon cross-examination he was asked: “ Did you know that }mur agents Doblin & Rosenthal were in the business of buying bankrupts ’ stocks for the purpose of cheating their creditors?” In excluding this question there was error. If an affirmative answer had been given, it would, have set his direct testimony in a new light. If Doblin & Rosenthal were in the business of buying from bankrupts who sold to defraud their creditors, and the plaintiff knew it, his purchase, upon information received from them, with their aid and in their company, would, especially in view of his relationship to one of the firm, have tended to show that, if this sale was fraudulent, he participated in the fraud.
The question put to Doblin on cross-examination, as to certain insolvency proceedings in New York, was properly excluded. A witness cannot be thus discredited, by showing that he is an insolvent debtor.
The question asked him in respect to inquiries as to Harris’ indebtedness, should have been admitted; but as the testimony which it sought to elicit was subsequently fully given in rebuttal, no injury was done to the defendant by the ruling.
In excluding the other questions put to this witness, there was error. The sale by a tradesman of his entire stock of goods to a stranger from another State, followed by their shipment thither for a sale by auction, was a transaction out of the common course of business. Walbrun v. Babbitt, 16 Wall. 577. Doblin was one of the consignees, and had been active in promoting the purchase. If he had negotiated similar transactions with other tradesmen, at the same place, and about the same time, and had been employed by
The copy of the record of Harris’ examination in the Court of Insolvency for Suffolk county, Massachusetts, was properly excluded, because the exemplification lacked the certificate from the judge of the court required by the Rev. Stat. of the U. S., § 905. Had due latitude been allowed upon the cross-examination of the plaintiff’s witnesses, it is possible that enough might have been brought out to constitute, in the opinion of the trial court, such evidence of a fraudulent conspirac}' as to justify the admission of declarations of any of those who were claimed to have been parties to it. But, even in that case, this examination in insolvency, having been taken a year after the sale to Smith, could not have been received. Declarations of one conspirator are admissible against another only when made in the course of the conspiracy. Knower v. Cadden Clothing Co., 57 Conn. 202, 222.
The other copies were properly authenticated, and the records and judicial proceedings which were their subject were thereby entitled to have such faith and credit given to them in our courts as they have by law or usage in the courts of Massachusetts. U. S. Rev. Stat., § 905. The statutes of that State provide as follows: “The proceedings in courts of insolvency shall be deemed matters of record, and the assignment and certificate of discharge shall be recorded in full. The other proceedings need not be recorded at large, but shall be carefully filed, kept, and numbered in the office of the register. Copies of all parts of the records . . . duly certified by the register, shall in all cases be admissible as prima facie evidence of the facts therein stated. . . . The register shall keep a docket with an alphabetical index of all eases in court, in which he shall enter short memorandums, with the numbers, of all proceedings and papers filed.” Public Stat. of Mass., ed. of 1882, Chap. 157, §§ 6, 7, p. 880. The assignment, which is to be recorded at
The copy of the docket entries offered in evidence began as follows:—
First Meeting"
“ No. 3142 Lewis Harris Boston.
1895 June 11 (1) (2) $25. Deposit Costs. Pet’n by Debtor. Warrant rete. July 26th 1895, 10 A. M. Po. & Trav.
“ 12 ' July 26 (3) (4) Schedule; of Creditors, of Property First meeting, warrant ret’d. 1st publ’n June 13th, 1895
(5) Claims proved—Joseph Caro, Barnard
(6) (7) Gi-inzberg, Albert W. Hixon ana Co.
(8) -9-Louis Nelson, Austin Stone and Co.
-10- -11-W. H. Grainger; List of Debts John H. Blanchard, assignee:—
-12-Acceptance, Assignment recorded Yol. XI, page 265.”
This transcript also included copies at length of a “ Schedule of property, in the case of Lewis Harris, Insolvent Debtor, Case No. 8142,” which stated that he had no property; and of a “ Schedule of Creditors ” in the same case, among whom appeared “Clark, Hutchinson & Co., $355.88,” and others, whose claims in all amounted to over $2,700. Each schedule was signed by Harris, sworn to by him on June 8th, 1895, and filed in the Court of Insolvency on June 12th.
Every State has the right to determine for itself how fully the judicial proceedings in its courts shall be recorded. Massachusetts has deemed it sufficient, in her Courts of Insolvency, simply to minute all the proceedings, upon a voluntary petition, on the docket, down to the point of the actual assignment of the insolvent estate. This does not affect their judicial character or evidential weight. Read v. Sutton,
The sale to the plaintiff took place in February, 1895, nearly three months earlier. For reasons already stated, therefore, no mere declarations as to past transactions, made by him before the Court of Insolvency, in or after June, 1895, would be admissible against the plaintiff, even if both had been engaged in a previous conspiracy to defraud his creditors. Hearsay does not change its nature by being communicated to a court of justice. But that he occupied, in that month, the status of an insolvent debtor, under the laws of his State and before its courts, was a fact which bore directly upon the defense set up. If, at the time of the sale in controversy, he intended a fraud upon his creditors, one way to effect his purpose would be to conceal or dispose of the proceeds and then take an early opportunity to get rid of his obligations by applying for a discharge in insolvency. His petition in insolvency was a step in that direction. It is unimportant whether the statements which it contained, or those of the schedules by which it was supported, were true or not, or whether, under the statute of the United States and the laws of Massachusetts, they were to be accepted in our courts as prima facie true. They were a part of the record of the cause; they were statements of a kind which it was necessary to make in order to support the jurisdiction of the court to proceed to grant a discharge; and the fact that Clark, Hutchinson & Co. were included in the schedule of creditors (without regard to the question whether they were in fact among his creditors or not), tended to identify Lewis Harris of Boston, the insolvent debtor, with Louis
There is no ground for the remaining reasons of appeal, and the rulings complained of are so obviously correct that no discussion of them is required.
There is error, and a new trial is ordered.
In this opinion the other judges concurred.
