2 Mich. 161 | Mich. | 1851
Upon the questions noticed in the statements,
Before the proofs were finally closed, the complainant offered in evidence a certified copy of an indictment against William B. Brown, charging him with perjury, in that portion of his answer relating to the character, and object of the deed from the complainant to Brown, and the execution and payment of the bond for $2000, as a full consideration for the deed, and of Brown’s trial and conviction by a jury thereon, and also of motions in arrest of the judgment, and for a new trial made upon the rendition of the verdict, which motions were reserved and held over for advisement by the Court, until the next term thereof. It was stipulated by the Solicitors that these proceedings might be read in evidence on the hearing of this cause, with the like effect as if the same had been proved before a master, under the rules of Court.
On the argument it was conceded that Brown died before the motions were determined, and no judgment was ever pronounced upon the verdict.
The object of introducing these proceedings was to discredit Brown, and destroy the effect of his answer, while it is contended on the part of the defendants that they are not competent, and can have no effect
In the case of Bartlett vs. Pickersgill, cited by counsel in Rex vs. .Boston, the defendant having by his answer denied the trust, was indicted for perjury in that particular, and convicted on the evidence of the complainant, circumstances confirming that testimony, and proof by other witnesses of a declaration by the defendant. After-wards the complainant petitioned for leave- to file a supplemental bill, in the nature of a bill of review, stating this conviction. But Lord Keeper Henley dismissed the petition on the ground that no use could be made of the conviction for any purpose of the prosecution in his suit in equity. Some cases were also cited in which a contrary doctrine had been held, but the principle laid down in that case was considered by the Court of King’s Bench as .at that time well established. The complainant in this case appeared as the prosecutor of the indictment, and would unquestionably have been a competent witness upon the trial, though he was not used as such. If so, does the fact of his not being a witness on that trial, make the finding of the jury, evidence in his favor in this suit to destroy the answer ? Had judgment been rendered upon the verdict, this question would have arisen, but motions having been made in arrest of judgment and for a new trial, which remained pending and undetermined until the death of Brown put an end to the prosecution, I am unable to discover upon what principle -these proceedings can be regarded as evidence of the falsity of the an
Another question which was made upon the argument, and strongly urged by the counsel for the defendánts, may more properly be disposed of before entering upon the discussion of the issue, as presented by the pleadings.. There was some evidence introduced, tending to show that the complainant executed the deed to Brown, instead of giving him & power of attorney, for the purpose of defrauding his creditors, and it was urged that for this reason the complainant was not entitled to relief. However good such a defense might have been, had it been set up in. the answer, it is sufficient to say that it is not put in issue by the pleadings. It is a well established and most salutary rule of the Court of Chancery, to found its decrees upon some matter put in issue between the parties by the bill and answer. James vs. McKernon, (6 J. R., 543,) Governeur vs. Elmendorf, (5 J. Ch. R., 79.) The complainant charges in his bill that the deed was intended to operate as a power of attorney between the parties, and that no consideration was paid or agreed to be paid by Brown. The answer fully denies these statements of the bill, and sets forth that on the contrary thereof, it was intended and understood to be an absolute conveyance, and that a good consideration was agreed to be paid, and was fully paid to the satisfaction of the complainant for the property embraced in the deed. No fact or circumstance is stated in the pleadings on either side, going to show that the deed was made to hinder, delay or defraud creditors, and it was therefore improper to introduce testimony for the purpose of establishing such a fact. A defendant cannot be allowed thus to depart from the
Decree affirmed.