Hosmer v. Oldham , 1877 Mass. LEXIS 180 ( 1877 )

Morton, J.

The assignees of Dupee being the real defendants in this case, it was competent for the plaintiffs to put in the schedules of Dupee filed in bankruptcy, for the purpose of proving that he was insolvent at the time he filed them, if that fact was admissible. The case is not like Simpson v. Carleton, 1 Allen, 109, cited by the defendant. There it was held that in a suit by an assignee of an insolvent debtor to set aside a conveyance alleged to be a preference, he could not put in the schedules of the insolvent debtor, they being merely declarations in his own favor in disparagement of the title of his vendee. But in a suit against him or his assignee, his admissions or declarations, if pertinent and material, are admissible in favor of the plaintiff. Wellington v. Jackson, 121 Mass. 157.

But the fact that Dupee was insolvent, at a time subsequent to the sale to him by the plaintiffs, was not competent to prove his insolvency at the time of the sale, unless it was shown that his situation had not materially changed between the two dates; or unless the insolvency was so near in point of time to the sale as fairly to lead to the inference that he was insolvent at the time of the sale.

1'his bill of exceptions does not show that there was any proof that Dupee’s situation remained the same, or that his insolvency was not caused by losses after the sale.

Whether, in the absence of such proof, the insolvency was so near the sale as to make it admissible, was a question within the discretion of the presiding justice, to be exercised in view of all the circumstances of the case as they appeared at the trial. The bill of exceptions, therefore, does not show that there was any error in matter of law. Exceptions overruled.