Hutchinson v. Chadbourne , 35 Me. 189 ( 1853 )

Siiepley, C. J.

— The action is trespass commenced against the defendant as sheriff for the acts of one of his deputies, in making an attachment of a stock of goods as the property of Charles W. Boothby, on June 13, 1851.

The plaintiff claimed the goods as a purchaser of them from Boothby on June 2, 1851. The defendant, acting for the attaching creditors of Boothby, alleged that purchase as against them to have been fraudulently made. To contribute to the proof of it he was permitted to read an office copy of a deed of real estate, conveyed on the same June 2, by Charles W. Boothby to Nathaniel T. Boothby; and office copies of two deeds of real estate from Charles W. Boothby to Jeremiah M. Mason, and of three deeds of real estate frSm Thomas M. Pierson to Charles W. Boothby. Objection was made by the counsel for plaintiff to their introduction.

By the thirty-fourth rule of this Court, office copies of deeds pertinent to the issue, may be read in evidence without proof of the execution of the deeds, “ in all actions touching the realty” by one not a party to the deed, nor claiming as heir, nor justifying as servant of the grantee or of his heirs.

In the case of Kent v. Weld, 2 Fairf. 459, it was decided, that such office copies could be admitted only in actions touching the realty; and that in all other actions the general principle of the law of evidence prevailed, that a party offering to prove a fact by deed must produce it and prove its execution.

Testimony of a proper description tending to prove, that Charles W. Boothby made a fraudulent conveyance of property at or about the same time to another person, would have been admissible to exhibit a general design on his part to defraud his creditors, and therefore to render it probable, that the sale in question was made in part accomplishment of that design. Aldrich v. Warren, 16 Maine, 465; Hawes v. Dingley, 17 Maine, 341.

It did not appear, that the plaintiff was present, when the conveyance was made to Nathaniel T. Boothby or that he had any knowledge of it at the time of the sale made to him. It could therefore have no other influence upon his rights than to exhibit the general design of his vendor. He could not personally be subject to any unfavorable inference to be drawn from it, because he did not introduce testimony to explain a transaction, respecting which he had no knowledge. Exceptions sustained, verdict set

aside and new trial granted,

Tenney, Howard and Appleton, J. J., concurred.