Knowlton v. Moseley , 105 Mass. 136 ( 1870 )

Morton, J.

We are of opinion that one of the exceptions taken by the demandant at the trial must be sustained. For the purpose of contradicting Addison A. Moseley, who was a witness for the tenant, the demandant offered the written answers of the witness made by him in an examination under oath before a register in bankruptcy, but the court excluded them. We think these answers should have been admitted. They fall within the rule wMch allows a witness to be impeached by proof that he has made conflicting statements at other times. The fact that the examination was not completed and the answers not signed affects file weight of the testimony, but does not render it incompetent. The answers, though not written by the hand of the witness, were reduced to writing by his agent, at his dictation, and were admissible as his statements. The case is within the principle of Lynde v. McGregor, 13 Allen, 182. This view renders immaterial the exception to the ruling rejecting oral testimony of the answers made by the witness in the course of said examination. Such testimony is claimed to be admissible only in the alternative that the written answers are held to be incompetent.

The only other exception now relied on by the demandant is to the ruling of the presiding judge admitting evidence of certain transactions between the bankrupt and the tenant prior to the conveyance which is alleged to be fraudulent. We think it is clear that evidence of these transactions, as stated in the bill of exceptions, was competent. It tended to show what was the consideration of the conveyance, and the inducements which led the bankrupt to give it, and thus bore directly upon the question whether it was made in good faith or in fraud of creditors.

The tenant’s counsel has argued one question not raised at the trial nor presented in the bill of exceptions. He insists that the demandant cannot sustain this action, because the conveyance alleged to be fraudulent was made more than six months before the filing of the petition in bankruptcy, and therefore that a new trial would be useless. But this ground is not tenable. By the provisions of the bankrupt act, U. S. St. 1867, c. 176, § 14, the assignment vests in the assignee all the property, real and personal, of the bankrupt, including “ all the property conveyed by the bankrupt in fraud of his creditors.” This suit is brought to recover the demanded premises upon the ground that the conveyance by the bankrupt was fraudulent at common law, and the thirty-fifth section of the bankrupt act does not apply to it. Gibbs v. Thayer, 6 Cush. 30. Exceptions sustained.