10 Me. 71 | Me. | 1833
The opinion of the Court was at a subsequent term delivered by
motion for a new trial, predicated on the report of the pro,siding Judge, has been placed, in the argument, by the counsel for the plaintiffs, on two grounds — viz. :
1. That by law it was not competent for the defendant to set up the defence which he was permitted to make : —•
2. That Weymouth, in support of the defence, was an inadmissible witness. The counsel contended that both objections were well founded, because the intestate and Weymouth were both parties to the fraudulent arrangement to which Weymouth testified. And the counsel for the defendant, on his part, contended that the arrangement abovementioned was not fraudulent and illegal. —■ The correctness of this position, we apprehend cannot be maintained on any sound principles; for the object in view of the parties was to secure and protect the property that was purchased of the plaintiffs, as well as of other persons, and placed in the store, from the old, that is, the then existing, creditors of Weymouth; under false appearances to deceive them, and thus to defraud them. Surely such a transaction cannot be sanctioned in a court of justice. The design of all three, according to the finding of the jury, was, in reality, that Weymouth was to be considered to all intents and purposes as the purchaser of the goods; and then they were to be placed by him, under the cover of the name of the intestate, and, to appearance, as his property. Such is the real nature of the transaction, as the jury must have found it: it thus assumes the essential character of a fraudulent sale by a debt- or, to conceal his property from his creditors ; in the formation and execution of which design all three of the parties were
We apprehend that the authorities we have collected and stated in this opinion, are sufficient to shew that there is no such legal distinction as the counsel for the plaintiffs has endeavoured to establish, as to the source from which the evidence of covin or illegality is to be derived, in actions on executory contracts. We may, however, add to the list, the familiar defence of usury in actions on contracts: in all such cases, the evidence of the usury is always introduced by the defendant to prove the illegality of the contract. The defence which destroys a gaming note is always sustained by proof adduced by the defendant, though he is guilty of a violation of law, and relieves himself from his obligation by such violation in concert with the plaintiff. For the reasons thus given, we are of opinion that it was competent for the defendant to set up the defence which he was permitted to make.
As to the second ground of objection, namely, the alleged incompetency of Weymouth to testify in support of the defence, there seems to be no room for hesitation. In Mill v. Pay son, 3 Mass. 559, it was decided that the grantee of a deed was a good witness to prove the deed without consideration and void against creditors. In Loker v. Haines, 11 Mass. 498, it was decided that the grantor in a deed, if not interested, was a good witness for a similar purpose. The same principle was decided in the above cited case of Inhabitants of Worcester v. Eaton. So also in Bean v. Bean, cited in the argument. It would seem to be a sound principle, that the same reasons and policy which render it proper and salutary to permit, a partner in the fraud or illegality in the contract, when sued upon it, to disclose and prove such fraud or illegality by way of defence to the action, render it proper for any other partner, except the plaintiff, to be a good witness in support of the defence. On the whole, we are all of opinion that the ruling of the Judge was correct, and that the motion for a new trial cannot be sustained for any reasons appearing on the report of the Judge.
Judgment on the verdict.