Kolb v. Whitely , 3 G. & J. 188 ( 1831 )

Stephen, J.,

delivered the opinion of the court

This is an action of Trover, instituted by the appellee, as trustee of Trowbridge and Taylor, to recover from the appellant certain property, transferred by Trowbridge and Taylor to the appellant, who was their creditor at the time they became insolvent. In the course of the trial of the cause, the plaintiff offered in evidence certain declarations of one of the insolvents, a short time prior to the transfer, relative to the pecuniary embarrasments of the firm, and also certain entries in their day-book, for the purpose of showing that they were dispossessing themselves of their property, generally, with a view or under an expectation of becoming insolvent debtors, and to enable the jury to ascertain the time, when such view or expectation originated; a part of which entries went to show that they were disposing of large quantities of leather, part of their stock in trade, and. of Avhich article they were manufacturers. To the admissibility of these declarations and entries, the defendant, by his counsel objected, but the court overruled the objection and' suffered the testimony (o be given to the jury; the defendant excepted, and whether or not such testimony was legally admissible, for the purpose for which it was offered, is the question, which this court is noAV called upon to determine. The insolvents applied for the benefit, of the insolvent laAvs on the 37th of March, 1839; on the 30th of March of the same year, the transfer of the leather was made to the defendant, for which this action was brought. (Here the Judge adverted .to the bills of exceptions, and then said.) By an act of the General Assembly, passed in 1816, ch. 331, sec. 6,-. it is enacted, “ that all deeds, conveyances, transfers, assignments, or sales of any property, real, personal or mixed, or of any debts, rights or claims, to any creditor or creditors, security or securities, which have been, or shall hereafter be made by any person, with a view or under an expectation of being.of becoming an insolvent debtor,'and. with an intent thereby to give an undue and improper preference to such creditor or creditors, security or securities, shall be absolutely null and void.” And it further provides, that such property shall vest in the trustee of the insolvent debtor, as effectually as any property specified in his schedule. To enforce the provisions of this section, and to recover the property transferred, was the object of this.suit. It became necessary, therefore, to prove to the jury, that at the time of the transfer and delivery of the property to Kolb, the insolvents contemplated becoming insolvent debtors; and to establish that fact, the entries and declarations were offered in evidence. The rule is well settled, that where the expressions heard, constitute a part of the transaction, they are admitted to show its character, or the speaker’s intention ; as the declarations of a trader on leaving home, to show an act of bankruptcy, 2d Saun. P. and E. 66. Hearsay is often admitted in evidence, as part of the res.gesta ; the meaning of which seems to be, that where it is necessary, in the course of a cause, to inquire into the nature of a particular act, and the intention of the person who did the act, proof of what the person said at the time of doing it, is admissible evidence for the purpose of shewing its true character. Thus, for example, in an action by the assignees of a bankrupt, the bankrupt’s declarations, at the time of his absenting himself from home, are properly received in evidence, to show the motives of his absence. In the case of Bateman vs. Bailey, therefore, where the question was, whether the trader’s departure from his dwelling house, amounted to an act of bankruptcy, the Court of Kings Bench were of opinion that the reasons which he gave for his absence, after his return home, ought to have been admitted in explanation of his own act. 1st. Philips' Ev. 202. What a bankrupt said at the time of his doing an act, alleged as the act of bankruptcy, is receivable in evidence as being part of the res gesta, and as evincing the intent with which the act was done, 1st Saun. Plea. and Evi. 68. Speaking on the subject of presumptive evidence, Starkie, in his treatise on evidence, 1 vol. 19, says, “The necessity of resorting to presumptive evidence is manifest. It very frequently happens that no direct and positive testimony can be procured; and often when it can be had, it is necessary to try its accuracy and weight, by comparing it with the surrounding circumstances so (p. 39) he observes, “ From what has been said, it seems to follow that all the surrounding facts of a transaction, or as they are usually termed, the res gesta, may be submitted to a jury, provided they can be established by competent means, and afford any fair presumption or inference, as to the question in dispute ; for as has been already observed, so frequent is the failure of evidence from accident or design, and so great is the temptation to the concealment of truth, and misrepresentation of facts, that no competent means of ascertaining the truth, can or ought to be neglected.” “Hence it follows, that facts remote from and irrelevant to the issue between the parties, are inadmissible, for no presumption can safely be drawn from them; and if such evidence does not tend to prejudice and mislead the jury, at least, it unnecessarily consumes the time of the court. The evidence must be confined to the fact or point in issue.” When A, the holder of a bill, deposites it with B, as security for the balance of accounts between them, and after it is due, B endorses it to C, in an action by C against A, the account book of B is not evidence in diminution of the balance between A and B, but a contemporaneous entry or declaration would have been admissible. 2d Saun Plead. and Ev. 557. So, “ where the party against whom the evidence is offered, was privy to the act, the objection ceases, it is no longer res inter alios. And in general, where the evidence is offered as a mere fact which is connected with the matter in dispute, and not with a view to affect the party, otherwise than as the actual existence of the fact affects the nature of the transaction itself, then, although it was a transaction between others, yet as a mere fact, and part of the res gestee, it is evidence.” 1st Starkie, Ev. 52. Here the evidence was offered as a mere fact connected with the matter in dispute, and not with a view to affect the party otherwise, than as the existence of the fact evinced the nature and character of the transaction. The declarations offered in evidence in this case were made by the insolvent immediately, or a few days preceding the transfer in question, and tended directly to prove his contemplated or apprehended insolvency, and the entries showing a disposition of their effects to particular creditors, were also facts not remote from, but contemporaneous with, and immediately preceding, and subsequent to, such transfer; they were, therefore, in the language of Starkie, part of the res gestee; nor can such declarations or entries be considered as made from sinister motives, because there was then no controversy or Us pendens, in relation to the transfer, and the insolvents had no reasonable motives to misrepresent the truth.

We are, therefore, of opinion in this case, that the court below were right in receiving the declarations and entries as surrounding circumstances of the transanction, and a part of the res gestm, showing the insolvent situation of the parties at the time, and that they contemplated becoming insolvent debtors, in consequence of the derangement of their affairs, and their utter inability to pay their debts.

JUDGMENT AFFIRMED.